RESOLVING PENDING CASES THROUGH ALTERNATIVE DISPUTE … · 2.2.3.2 Difference between Conciliation...

Project Report on

RESOLVING PENDING CASES THROUGH ALTERNATIVE DISPUTE RESOLUTION UNDER SECTION 89 OF CIVIL

PROCEDURE CODE: A CASE STUDY

Submitted To: Department of Justice,

Ministry of Law and Justice, Government of India

Submitted By: Dr. Marisport A

Assistant Professor of Law, Gujarat National Law University.

134913/2019/NM313

Resolving pending cases through Alternative Dispute Resolution under Section 89 of Civil Procedure Code:

A Case Study

Submitted To: Department of Justice,

Ministry of Law and Justice, Government of India

Submitted by the research team consist of

Dr. Marisport A. Assistant Professor of Law

Gujarat National Law University, Gujarat, India

Dr Ambati Nageswara Rao Assistant Professor of Social Work


Ms Heena Goswami Assistant Professor of Science and Technology


Project Report on

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iii

Acknowledgements

On behalf of our research team, I would like to thank Department of Justice for giving this

project to us. Would like to thank our director Prof. (Dr.) S. Shanthakumar and former Director

Dr Bimal N. Patel for their constant support and motivation. Would like to thank our registrar

Dr Jagadeesh Chandra T.G., Registrar (I/C) and Office of Dean Research for their kind support.

Would like to thank our student research assistants Yash Patel, Sacchit Joshi, Nisha Nahata

and Pooja Jasani for their dedicated support in data collection and data entry. I would like to

thank Gujarat State Legal Services Authorities for their kind support for providing the data

pertaining to Lok Adalat and mediation. I would like to thank our Data analyst Dr Vikas Kumar

for his dedicated support in data analysis. Finally I would like to thank my co-investigators Dr

Ambati Nageswara Rao, Assistant Professor of Social Work and Ms Heena Goswami,

Assistant Professor of Science and Technology for their constant support.

Dr. Marisport. A

Principal Investigator

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Table of contents

LIST OF CASES X

ABBREVIATIONS XI

LIST OF TABLES XII

LIST OF FIGURES XV

EXECUIVE SUMMARY XVII

1. INTRODUCTION 01-11

1.0 Introduction 01

1.1 Review of Literature 01

1.2 Significance of the study 07

1.3 Scope and limitation of the study 08

1.4 Research objectives 09

1.5 Hypothesis 09

1.6 Research Methodology 09

2. HISTORY AND DEVELOPMENT OF ADR IN INDIA 12 - 36

2.1 ADR mechanisms in ancient India 13

2.2 History of ADR in India 13

2.2.1 History of Arbitration in India 13

2.2.2 History of conciliation in India 15

2.2.3 History of mediation in India 16

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2.2.3.1 Differences between courts annexed mediation and

private mediation 18

2.2.3.2 Difference between Conciliation and Mediation 19

2.2.4 Lok Adalat 21

2.2.5 Permanent Lok Adalat 31

2.2.5.1 Difference between Lok Adalat and Permanent Lok

Adalat

34

3. SALIENT FEATURES OF SECTION 89 OF CIVIL PROCEDURE

CODE

37-54

3.1 History of section 89 of CPC 38

3.2 Mandatory ADR referral of disputes and its usage in

various countries

39

3.3 Bare provision of section 89 of CPC 41

3.4 Lacuna in section 89 of CPC 42

3.4.1 Role of the judge with regards to referral of the dispute

and recording of the settlement:

43

3.4.2 Court’s obligation under section 89 of CPC and

mandatory referral of the dispute to any form of ADR

46

3.4.3 Deciding and referring appropriate ADR for the

resolution of the Dispute

47

3.4.4 There is no clear-cut definition/explanation about

different types of ADRs and their referral process

48

3.4.4.1 Arbitration 49

3.4.4.2 Conciliation 49

3.4.4.3 Mediation 50

3.4.4.3.1 Role of court annexed mediation in section 89 referral 51

3.4.4.4 Lok Adalat 52

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3.4.4.5 Judicial settlement 53

3.4.5 Inclusion of another new form of ADR 54

3.4.5.1 Dispute Adjudication Board and Dispute Review Board 54

3.4.5.2 Early Neutral Evaluation 55

3.4.5.3 Ministerial/Executive tribunal 55

3.4.5.4 Expert determination 55

3.4.5.5 ODR 56

3.5 Proposed amendment in the section 89 of CPC 57

3.6 Comprehensive road map for the role of the presiding

judge under section 89 of CPC

58

4. ANALYSIS OF THE IMPLEMENTATION OF SECTION 89 OF

CPC IN THE STATE OF GUJARAT

59 - 136

4.1 Judicial system and ADR institutions in the state of

Gujarat

60

4.2 Mindset of the stakeholders on the implementation of

section 89 in the state of Gujarat

65

4.2.1 Data Analysis and Interpretation of Litigants 66

4.2.1.1 Broader Analysis of the Respondents 67

4.2.1.2 Respondent’s Education across the districts 67

4.2.1.3 Occupation of Respondent 69

4.2.1.4 Nature of dispute 70

4.2.1.5 Time duration of the Cases 72

4.2.1.6 Nature of Dispute with time duration 72

4.2.1.7 Nature of Dispute based on the District with time

duration

73

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4.2.1.8 Analysis Related to ADR awareness 76

4.2.1.7.1 Reason of filing the Case 77

4.2.1.7.2 Statistics related to the opinion of the litigants about the

Current Court System

78

4.2.1.7.3 Reason for non-satisfaction 80

4.2.1.7.4 Awareness about the ADR System 81

4.2.1.7.4.1 Willingness to resolve their dispute through ADR 82

4.2.1.7.4.2 Suggested about ADR system or not 83

4.2.1.7.3 Form of ADR 85

4.2.1.7.4 Knowledge About the ADR 87

4.2.1.7.5 Knowledge on Lok Adalat 88

4.2.1.7.6 Knowledge on Mediation 89

4.2.1.7.7 Knowledge on Arbitration 89

4.2.1.7.8 Knowledge on Conciliation 90

4.2.2 Data Interpretation and Analysis of Advocates 91

4.2.2.1 Basic Analysis of the Respondents 92

4.2.2.2 Experience of Advocates 93

4.2.2.3 District wise Nature of Dispute handled by advocates 95

4.2.2.4 Time duration of the Cases 96

4.2.2.5 Nature of Dispute with time duration 97

4.2.2.6 Nature of Dispute based on the District with time

duration

99

4.2.2.7 Advocates perspective on the ADR System 103

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4.2.2.6.1 Causes to bring the Case in Court 104

4.2.2.6.2 Satisfaction with Current Court System 104

4.2.2.6.3 Causes of dissatisfaction 108

4.2.2.6.4 Suggesting the ADR System to the Litigants 110

4.2.2.6.4.1 Suggested about the ADR system

110

4.2.2.6.4.2 Form of ADR 115

4.2.2.6.4.3 Number of advocates who got training in Mediation 117

4.2.6.5 Overall satisfaction of Trial Court’s approach on section

89 referral

117

4.4 Testing of hypothesis 128

4.4.1 Hypothesis 1: Litigants are not fully aware about the

ADR System

129

4.4.2 Hypothesis II: Neither Advocates nor the Judges

explained about the ADR system

136

5. CONCLUSION AND RECOMMENDATIONS 138-147

5.1 Conclusion 139

5.2 Recommendations 145

5.2.1 Amendment in section 89 of CPC 146

5.2.2 Amendment in the order XX of CPC 147

5.2.3 Other recommendations 147

Annexure I- Questioners which are used in the data collection 149-153

Part A Questioner for litigants 149

Part B Questioner for advocates 151

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Part C-Questioner for judges 153

Annexure-II 238th Report of Law Commission of India

Recommendations on the Amendment of Section 89 of

CPC

154-155

Annexure- III High Court of Gujarat Instruments on the

implementation of section 89 of CPC 156-169

Part A-Civil Procedure Mediation (Gujarat) Draft Rules,

2007 156

Part B-Draft referral order 171

Annexure- IV Statistics on Lok Adalat and Mediation conducted in the

state of Gujarat

172-174

Part A-Statement Showing Details Of Lok Adalat &

Legal Literacy Camp Held In Gujarat State (Up to

January -2017)

172

Part B- Statement Showing The Details Of The Matters

To All Adr/Mediation Centres In The State Ending

31/03/2017 Since Its Establishment

173

REFERENCES 175-176

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List of cases

Sr. No Title of the case

1 Sukanya Holding Private Ltd. v Jayes. H. Pandya, (AIR 2003 SC 2252).

2 Afcons Infrastructure Ltd. & Another v Cherian Varkey Construction Company

Pvt. Ltd. & Others 2010 (8) SCC 24

3 Salem Advocate Bar Association, T.N. v Union of India (2005) 6 SCC 344

4 Salem Advocate Bar Association v Union of India [2003 (1) SCC 49

5 Punjab National Bank v Laxmichand Rai & Ors, AIR 2000 MP 301

6 Kamal Mehta v General Manager, Rajasthan Roadways Transport Corporation

& Another, FAO No. 798 of 1999

7 Venkatesh v Oriental Insurance Co. Ltd., ILR2002KAR3666

8 Bharvagi Constructions & Anr v Kothakapu Muthyam Reddy & Ors., Civil

Appeal No.11345 Of 2017

9 State of Punjab & Anr. v Jalour Singh & Ors. (2008) 2 SCC 660.

10 Smt. Soni Kumari v Sri Akhand Pratap Sing, Allahabad HC, 2018

11 K.N. Govindan Kutty Menon v C.D. Shaji, SC, 2012

12 Subhash Narasappa Mangrule (M/S) & Others v Sidramappa Jagdevappa Unnad,

2009 (3) Mh.L.J. 857

13 M/s Valarmathi Oil Industries & Anr. v M/s Saradhi Ginning Factory, AIR 2009

Madras 180

14 Moti Ram v Ashok Kumar, (2011) 1 SCC 466

15 Bar Council of India v Union of India, SC 2012

16 InterGlobe Aviation Ltd v N. Satchidanand, (2011) 7 SCC 463.

17 S.N. Pandey v Union of India, Writ Petition (Civil) No. 543/2002 (SC).

18 Jagdish Chander v Ramesh Chander 2007 (5) SCC 719

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Abbreviations

ADR : Alternate Dispute Resolution

NLSA : National Legal Services Authority

SLSA : State Legal Services Authority

NJDG : National Judicial Data Grid

UNCITRAL: United Nations Commission on International Trade Law

CPC : Civil Procedure Code 1908

MCPC : Mediation and Conciliation Project Committee

ISDLS : Institute for Study and Development of Legal Systems

PL : Permanent Lok Adalat.

ODR : Online Dispute Resolution

MACT : Motor Accident Claims Tribunal

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List of Tables

Sr. No

Details of Table

Page No

Table-1 Court Wise Institution, Disposal and Pendency of Civil &

Criminal Cases for the Period: 01/01/2018 to 31/12/2018

(excluding High Court)1

56

Table-2 Number of Lok Adalats Held and Cases Settled by State

Legal Services Authorities (other than National Lok

Adalats) (April,2017 to March, 2018)

57

Table-3 The Number of Lok Adalats Held by State Legal Services

Authorities Under Legal Services Authorities Act 1987

And Cases Settled Since Inception (As On 30.06.2017)

58

Table-4 Number of Lok Adalats conducted and number of disposed of in

the state of Gujarat from 1982 to 2018

59

Table-5 Permanent Lok Adalats (Established u/s 22-B of LSA Act)

For the period w.e.f. April 2017 to March 2018

60

Table-6 Details of The Matters Referred to All ADR/Mediation

Centers in the State of Gujarat from 2012 to 2018 61

Table-7 Cases settled through mediation April 2017 to March 2018 62

Table-8 Region wise distribution of the Sample 65

Table-9 Nature of dispute involved across the district 69

Table-10 Nature of Dispute based on the District with time duration 71

Table-11 District wise cross tabulation of filed Cases 73

Table-12 Education wise cross tabulation of filed Cases 75

Table-13 Are opinion of the litigants upon the satisfaction of the

current court system.

76

Table-14 District-wise* reasons for dissatisfaction on the current

court system

78

Table-15 District * whether the judge has asked you to resolve your

dispute through ADR or not

82

1 High Court of Gujarat, Annual Report, 2018. Available at http://gujarathighcourt.nic.in/annualreport

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Table-16 District -wise* forms of ADR 84

Table-17 Knowledge of Lok Adalat 87

Table-18 Knowledge of mediation 88

Table-19 Knowledge of Arbitration 89

Table-20 District wise * knowledge on conciliation 90

Table-21 Region wise distribution of the Sample 91

Table-22 District wise Professional experience of Advocates 93

Table-23 District wise Nature of Dispute handled by advocates 94

Table-24 Nature of dispute with time duration 96

Table-25 Nature of Dispute based on the District with time duration 98

Table-26 Causes for bringing their dispute in Court by the litigants 102

Table-27 Based on the Experience satisfaction with Current Court

System across the districts

105

Table-28 Reasons for the dissatisfaction on the court system by the

advocates

108

Table-29 Clients reaction on the ADR options given by the

advocates

111

Table-30 District * Whether the judge has asked you to resolve your

client’s dispute to resolve your dispute through ADR or

not

113

Table-31 Form of ADR preferred by advocates 115

Table-32 Advocates who have undergone mediation training 117

Table-33 Overall satisfaction of Trial Court’s approach on section

89 referral

118

Table-34 Suggestion from The Advocates to Implement ADR

Referral Under Section 89

120

Table-35 Feel Improvement is required to Aid the Prompt Disposal

of Cases

122

Table-36 Chi-Square TestsLitigants are not fully aware about the

ADR System

128

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Table-37 Chi-Square Tests Aware about theLok Adalat is 129

Table-38 Chi-Square Tests Aware about Mediation is 131

Table-39 Chi-Square Tests Aware about Arbitrationis 132

Table-40 Chi-Square Tests Aware about Conciliation is 133

Table-41 Chi-Square Tests Neither Advocates nor the Judges

explained about the ADR system

134

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List of figures

Sr. No Title of the Figure Page No.

Figure 1 Number of Lok Adalats conducted and number of disposed

of in the state of Gujarat from 2010 to 2018

60

Figure-2 Educational Qualification 66

Figure-3 Education wise Respondents across the districts 66

Figure-4 Occupation of the Respondent 67

Figure-5 Occupation of Respondent in depth 68

Figure-6 Nature of dispute involved 69

Figure-7 Time duration of the Cases 70

Figure-8 Nature of Dispute with time duration 71

Figure-9 Reason behind the filing of the Case 73

Figure-10 District * litigants’ satisfaction on the current court system

cross tabulation

76

Figure-11 Reason for non-satisfaction 77

Figure-12 Willingness to resolve their dispute through ADR System 79

Figure -13 District wise Willingness to resolve their dispute through

ADR Systme

80

Figure- 14 District wise whether anybody has been suggested about this

ADR system or not

81

Figure-15 Whether the Judge has asked to resolve the dispute through

ADR or not.

82

Figure-16 Form of ADR 84

Figure-17 Do you know what ADR is? 86

Figure-18 Knowledge of Arbitration 92

Figure-19 Practicing Experience of Advocates 94

Figure-20 Nature of Dispute handled by Advocates 96

Figure-21 Time duration of the Cases 102

Figure-22 Causes for bringing their dispute in Court by the litigants 104

Figure-23 Satisfaction with Current Court System 104

Figure-24 District wise Satisfaction with Current Court System 108

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Figure-25 Reason for non-satisfaction 110

Figure-26 Suggested about the ADR system 110

Figure-27 District wise Suggested about the ADR system to resolve

their dispute by Advocates

113

Figure-28 Reaction of clients relating to ADR System 115

Figure-29 Whether the Judge has asked you to resolve your client’s

dispute through ADR

116

Figure-30 Form of ADR has been preferred by advocates 118

Figure-31 The advocates who have undergone the mediation training 120

Figure-32 Overall satisfaction of the Trial Court’s approach on section

89 referral

122

Figure-33 Suggestion from The Advocates to Implement ADR Referral

Under Section 89

123

Figure-34 Suggested the litigants for resolving their dispute through

any form of ADR

123

Figure-35 Advocates have reacted about the suggestion of Judges 124

Figure-36 Form of ADR suggested in Most of the times for the

resolution of the disputes

124

Figure-37 Form of ADR suggested in Most of the times for the

resolution of the disputes

125

Figure-38 After the Referral most of the Cases got 126

Figure-39 Reason for unsettlement of dispute through ADR 127

Figure-40 Suggestions for the better Implementation of Section 89 of

CPC

127

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Executive Summary

This research study's scope is not to argue merits an demerits of ADR system exclusively,

however, it aims to deliberate about how the court system can be improved to resolve the cases

as amicably as possible and reduce the pending and future dispute thereby reduce the workload

of the existing courts through section 89 referral. In this context, this study has scrutinized the

referral process of the civil courts under section 89 of the civil procedure code and which ADR

form is primarily used to resolve the dispute. In the backdrop of the study, it has also attempted

to examine the accomplishment of settlement of the disputes through section 89 referral and

what could be the possible strategies to implement ADR system in a better way. Our research

team has used doctrinal and non-doctrinal research methods to find out the current

implementation scenario and what is the problem faced by the stakeholders while

implementing this section and come with the possible suggestions for the better implementation

of this section.

Based on the analysis of section 89 of CPC along with various judgments of Supreme Court

and 238th report of Law Commission of India, our research team has concluded that this section

is required substantial amendments on the exact procedure supposed to be followed in the ADR

referral process by the judges and inclusion of new ADR mechanisms under Section 89 referral.

This research has tried to use doctrinal and non-doctrinal research methods to find out the

current implementation scenario and what is the problem faced by the stakeholders while

implementing Section 89 of CPC. In order to understand the practical difficulties in

implementation of section 89 of CPC and after considering the perception and behaviour

observations of clients, judges and Advocates. Our research team has collected 212 samples

across the five district of Gujarat on the basis of the different five zones. Among 212 samples,

100 samples have collected from clients and another 100 samples have collected from

Advocates and 12 samples have collected from retired judges. The research study scrutinized

the referral process of the civil courts under section 89 of the civil procedure code and which

ADR form is highly used to resolve the dispute.

The result shows that 55% of the litigants are not really satisfied with the current court system

and 45% of the litigants satisfied with the current court system. In comparison, out of 100

advocates, 59% of the respondents are not satisfied with the current court system and 41% are

satisfied. The litigants as well as advocates have displayed surprising amount of dissatisfaction

about the current court system.

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The research study shows that 93% of the advocates have proposed the option of the ADR

system to solve their dispute and rest of 7% have refused to consider this option altogether. Out

of this, 93% advocates suggested that the ADR mechanism to settle the dispute and

approximately 83% of the litigants are interested to adopt ADR system to solve their dispute

and rest of the 17% not interested to solve. On the other side, 76% of the litigants are interested

to adopt ADR system to solve their dispute and rest of the 24% not interested to solve. The

research states that 65% of the litigants got their suggestion about the ADR system before filing

the case and rest of the 35 % not get any suggestion about the ADR system.

The research study further analysed that experienced advocates are not always satisfied with

new dispute resolution method, however advocates with less experience or young advocates

seems comparativelysatisfied with the new method of settling dispute through arbitration,

mediation and conciliation. This research study also tried to find that which ADR system is

more preferable and based on the result, the litigants votes have suggested that the highest

number of favourable responses have been given given to arbitration (38.33%) followed by

mediation (31%), Conciliation (23%), and Lok Adalat (6 %). On the other hand, the 81% of

the judges have suggested, the highest number of preferences is given through Mediation

(approx 52%) followed by Arbitration (approx 41%), Conciliation and Lok Adalat are 3% each.

The study has further analysed that 89% of the advocates taught about trail Court is in favour

of ADR referral under section 89 of CPC and rest of 11% said the trial Court is not in favour

of ADR referral under section 89 of CPC.

The research study further compared between all the three stakeholders i.e. advocates, clients

and judges on the section 89 referral Firstly, as we asked about whether ADR process has been

introduced by the judges or not. The result shows that all the judges (total 12) said they have

introduced ADR to the clients as well advocates. But, if we see the result from the clients, only

60% respondents said that ADR has been introduced by Judge and 40 % denied that judges

have asked to solve their dispute through ADR. On the other hand, in terms of advocates only

81% of respondents said about the judges have been introduced ADR but all the judges claimed

they told to the advocates about the ADR. Similarly, in terms of willing to take part of ADR

process, the judges claimed that, most of the clients are not willing to solve their dispute

through ADR process but in compare with advocate response they said that, almost 83% of

clients willing to solve their dispute through ADR and 17% not willing to accept. In this sense,

it could be said that there is very difficult to say that ADR process system has been accepted

and properly implemented by all the stakeholders.

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While conducting this study, our research team has noticed that very few advocates have

recognised that section 89 is a common provision and as part of normal court procedure.

Whereas, many of the advocates have believed that ADR referral is something different

discipline. When we approached the advocates for our data collections, many of the advocates

have told that please approach the advocates who are dealing with arbitration cases. Similarly,

some judges also told that please approach arbitration practitioners for your survey.

Our research team has found that for the purpose of assisting the court under section 89 referral,

there is no concrete data available from these centers about the number of cases referred, types

of disputes and number of cases disposed by the court under section 89 of CPC. In addendum

to this Centre for Legal Policy study on Court-annexed mediations has revealed that renowned

court-annexed mediation centers have not kept mediation data with the proper classification of

the nature of disputes. It is found through our research team that there is no concrete data on

number of Lok Adalat conducted through Section 89 of CPC referral pertaining to civil cases,

however 25,43,801 Motor Accident Claims cases got resolved through Lok Adalats till now.

Based on the above findings, our research team would like to suggest that National Judicial

Data Grid(NJDG) must maintain a separate data on the section 89 referral and do the regular

audit on the success and failure of referred cases and thereby, the government could able to

bring suitable special dispute resolution policy for each dispute on regular basis.

Our research team has found certain obstacles in implementation of section 89 of CPC, which

have been stated below:

a) Lack of knowledge about ADR mechanism among litigants because of lack of creating

awareness among litigants through judges and advocates. Advocates are still not promotion

this mechanism effectively to the clients further creates lack of willingness among the litigants

or clients to pursue the case through this mechanism.

b) Most of the advocates are not well trained about this area of mechanism and because of

lack of expertise they are not able to take ADR mechanism route. Therefore, there is a need

to provide training about this system among the advocates.

Based on the research study, few suggestions have been discussed regarding the discrepancies

associated in implementation of ADR referral under Section 89 CPC-

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a) proposed amendments in section 89 of CPC: Settlement of disputes outside the court:

Where it appears to the court, having regard to the nature of the dispute involved in the suit

or another proceeding that the dispute is fit to be settled by one of the ADR mechanism then,

the court shall, preferably before framing the issues, record its opinion and direct the parties

to attempt the resolution of a dispute through one of the said ADR processes in accordance

with the sub-sections.

1) If the court decides the reference of the dispute to any non-adjudicatory alternative

dispute resolution processes, Including Conciliation, mediation, judicial

settlement, settlement through Lok Adalat, DRB, Early Neutral Evaluation, mini-

trial and ODR then, the court shall refer the same to such ADR mechanisms with

the consent of the parties or its own motion. However, the court cannot refer to the

dispute to Conciliation, mini-trial, Early Neutral Evaluation, DRB without the

written consent of the parties.

2) If the court decides the reference of a dispute to any of the adjudicatory alternative

dispute resolution processes Including Arbitration, Permanent Lok Adalat, Dispute

adjudicatory Board and Expert Determination then, the court shall, preferably

before framing the issues, record its opinion and direct the parties to attempt the

resolution of the dispute through one of the said adjudicatory processes upon the


b) Amendment in the order XX of CPC

Amendment in the Order XX (Judgment and Decree) under CPC for the purpose of

implementation of section 89 by the judges. Judge, at the time of writing down judgement

shall state that whether the particular dispute has been considered for ADR referral under

section 89 or not and If it has been referred to any form of ADR then, the outcome of the

same must be mentioned in the judgment.

c) Record of ADR Referral

There must be a regular audit of court-annexed mediation and ADR centers pertaining to

number of cases filed and settled in a particular Centre. Based on the aforesaid information

dispute centric process can be developed. Further, there must be concrete information about

the number of mediation and arbitration conducted. NJDG must maintain a separate data on

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the section 89 referral and do the regular audit on the success and failure of referred cases

and thereby, the government could able to bring suitable special dispute resolution policy for

each dispute on regular basis.

d) Training of Advocates about ADR Mechanism

Proper training must be given to the advocates and judges about various conventional and

new form of ADR mechanisms and the importance and features of these mechanisms.

Awareness programme must be planned specifically for the litigants and the common public

who will be the future litigants on the availability of ADR mechanisms for the resolution of

their disputes.

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CHAPTER - I

INTRODUCTION

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I. INTRODUCTION

1.0 Introduction:

As per the NJDG data, as on 6/6/2019, there are 31111546 Cases pending across the

country. Out of which 8827748 Civil Cases and 22283798 Criminal Cases. 71.67%

(6326458) cases and 72.91% (16248097) criminal cases are pending for more than one

year.1 NJDG has given data on the pendency of cases ranging from 2 to 10 years also.

For reducing the number of pending cases in courts, government along with judiciary

have taken various initiatives such as, speed up the process, the establishment of new

courts and increase the number of judges, etc. Apart from those initiatives, the

government has amended Section 89 of Civil procedure Code 1908 and mandated the

courts to try out the possibilities of resolving the pending civil disputes through

arbitration or mediation or Lok Adalat. Though this amendment has been passed by

the parliament in the year 1999 still, it has been enforced in the year 2002. The

government incentivizes the parties in the form of a waiver of partial court fees if the

pending case gets settled through any of the ADR mechanism under CPC Section 89

referral.

1.1 Review of Literature:

Prior to CPC section 89, there was no provision which insisted the mandatory referral

of the pending dispute to any form of ADR in India. Legal Services Authorities Act

has given the powers to the parties to approach Lok Adalat for the disposal of the

dispute. However, it does not give the mandatory referral option to the trial court which

is hearing that case. Based on the parties’ request, the trial court can refer to the

pending dispute to Lok Adalat. Apart from Lok Adalat referral option under Legal

Services Authorities Act, there is no other option to the parties as well as the trial court

to refer the pending dispute to other ADR mechanisms like arbitration, mediation, and

judicial settlement.

The former CPC section 89 was related to the referral of the pending dispute to

arbitration upon the arbitration agreement between the parties and later, this section

1 'National Judicial Data Grid (District and Taluka Courts of India)' (NJDG, 2019) <https://njdg.ecourts.gov.in/njdgnew/?p=main/index&state_code=24~17> accessed 20 August

2019.

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got repealed. The Indian government has amended the Civil Procedure Code in 1999

and introduced section 89 in the CPC with more ADR mechanisms in contrast to its

earlier form. There was a lot of resistance from the advocate community for the

implementation of CPC amendment Act 1999 including the implementation of section

89 of CPC. As a result, the Indian government could not notify this amendment Act.

Later Mr.Arun Jaitley, then Law Minister, had a lot of consultations with the

representatives from Bar Councils at the national level and state level. Finally, the

Indian government has notified The CPC amendment Act in June 20022 and it has

come in to force on July 1st, 2002. The mandate of ADR referral under section 89 is to

ensure amicable and quick resolution of disputes between the parties and reduce the

pendency of suits before the courts.

Section 89 of CPC states that “where it appears to the court that there exist elements

of a settlement which may be acceptable to the parties, the court shall formulate the

terms of settlement and give them to the parties for their observations and after

receiving the observation of the parties, the court may reformulate the terms of a

possible settlement and refer the same for –

a) Arbitration

b) Conciliation

c) Judicial Settlement including Settlement through Lok Adalat or

d) Mediation.3

The constitutional validity of Section 89 of CPC was challenged before the Supreme

Court of India in Salem Advocate Bar Association v. Union of India which is

popularly known as Salem Advocate Bar Association Iand the Apex Court has upheld

the constitutional validity of this section.4 For overcoming some procedural aspects,

The Apex Court has constituted a committee to frame suitable rules for smooth

implementation of section 89 of CPC. The committee has submitted its report along

with model rules on the implementation of section 89 of CPC in 2005 to the Apex

2 Paper T, 'CPC Amendments Take Effect From July 1' (The Hindu, 2019)

<https://www.thehindu.com/2002/06/15/stories/2002061502081200.htm> accessed 22 August

2019. 3 Civil Procedure Code (Amendment) Act 1999, s 89. 4 Salem Advocate Bar Association v Union of India, AIR [2003] SC 189.

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court. The Supreme Court has accepted that model rules in Salem Advocate Bar

Association II and it has asked all High Courts to frame similar rules for their

respective jurisdictions for the better implementation of section 89 of CPC.5

In Afcons Infrastructure Ltd. vs. Cherian Varkey Construction Co. (P) LTD,6 the

apex court has further laid down some detailed guidelines especially, on the referral of

the dispute to each ADR mechanisms and which kind of civil dispute can be referred

under Section 89. In this case, the court held that if the dispute is going to be referred

to arbitration or conciliation then, both parties must give their consent; whereas, if the

dispute is going to be referred to mediation or Lok Adalat then, there is no requirement

of the parties consent. In this case, the apex court also lists out the disputes which are

capable and non-capable of settlement through ADR mechanisms.

Cases which can’t be referred to ADRs:

1. Representative suits under Order 1 Rule 8 CPC which involve public interest

or interest of numerous persons who are not parties before the court. (In fact,

even a compromise in such a suit is a difficult process requiring notice to the

persons interested in the suit, before its acceptance).

2. Disputes relating to election to public offices (as contrasted from disputes

between two groups trying to get control over the management of societies,

clubs, association, etc.).

3. Cases involving the grant of authority by the court after inquiry, as for example,

suits for grant of probate or letters of administration.

4. Cases involving serious and specific allegations of fraud, fabrication of

documents, forgery, impersonation, coercion, etc.

5. Cases requiring protection of courts, as for example, claims against minors,

deities and mentally challenged and suits for declaration of title against the

government.

6. Cases involving prosecution for criminal offences.

5 Salem Advocate Bar Association v Union of India [2005] (6) SCC 344. 6 Afcons Infrastructure Ltd. v Cherian Varkey Construction Co. (P) LTD [2010] 8 SCC 24.

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Cases which can be referred to ADRs:

1. All cases relating to trade, commerce, and contracts, including - disputes

arising out of contracts (including all money claims);

a. Disputes relating to specific performance;

b. Disputes between suppliers and customers;

c. Disputes between bankers and customers;

d. Disputes between developers/builders and customers; - disputes

between landlords and tenants/licensor and licensees;

e. Disputes between the insurer and insured;

2. All cases arising from strained or soured relationships, including

a. Disputes relating to matrimonial causes, maintenance, custody of

children;

b. Disputes relating to partition/division among family

members/coparceners/co-owners; and

c. Disputes relating to a partnership among partners.

3. All cases where there is a need for continuation of the pre-existing relationship

in spite of the disputes, including

a. Disputes between neighbors (relating to elementary rights,

encroachments, nuisance, etc.);

b. disputes between employers and employees;

c. disputes among members of societies/associations/Apartment owners

Associations;

4. All cases relating to tortious liability including - claims for compensation in

motor accidents/other accidents; and

5. All consumer disputes including disputes where a

trader/supplier/manufacturer/service provider is very keen on maintaining his

business/professional reputation and credibility or 'product popularity.

In this case, the Supreme Court further highlighted that there is a typographical error

in section 89 of CPC and which must be rectified. It also stated that while referring the

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disputes, the judge must careful which ADR he is suggesting or the parties are

preferring and the nature of the dispute which he is referring.

Our research team has found that the above list cannot be applied uniformly to all types

of ADR mechanisms by the trial court judge. Matrimonial disputes as a subject matter

which can be referred to conciliation or mediation; however, it cannot be referred to

arbitration. Similarly, permanent Lok Adalat can pass the award on merits hence, there

must be different dispute referral mechanism for permanent Lok Adalat and Lok

Adalat.

Former Allahabad Judge, Justice S.U. Khan urged the review of the implementation

of section 89 of CPC across the country. He devised a method in which the review

should be conducted. He stated that respective High Courts in state-level or Supreme

Court in the national level collect the information and segregate in the following

manner,-

i. The review period should be one particular year.

ii. Each court shall furnish the information about the number of suits filed

in that particular year and number of suits which referred to ADR

mechanisms under section 89 of CPC.

iii. The courts should furnish how many suits got settled after the ADR

referral and how many suits are not settled after the referral and come

back to the court.

iv. All the suits are classified into 4 or 5 broad categories and the suits

which got settled through ADR referral and which are not settled

through ADR referral must be identified through the subject

classification.7

The 2017 NUJS ADR study report has highlighted that West Bengal litigants have the

knowledge on Lok Adalat as an ADR mechanism; some people from urban parts of

West Bengal like Kolkata and North 24 Parganas have experience in arbitration and

some rural area people have knowledge about mediation. Very few people have

7Justice S.U. Khan, 'Judicial Settlement Under Section 89 C.P.C. A Neglected Aspect' (Ijtr.nic.in) <http://www.ijtr.nic.in/Article_chairman%20S.89.pdf> accessed 23 August 2019.

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knowledge about conciliation and negotiation.8 This study was conducted from

Litigants, Advocates and Administers/judges who have to handle the mediation or Lok

Adalat.

Though this study has been conducted to analyze the effectiveness of overall ADR

mechanisms in West Bengal still, this report has looked upon section 89 CPC ADR

referral scenario in West Bengal. This report has highlighted that the majority of ADR

referral cases coming back to court due to ignorance and orthodox mindset of the

litigants.9

This study further revealed that except Kolkata and North 24 Parganas, the litigants

have not informed on the ADR mechanisms which are available to them and in some

places, the judges have given an unclear explanation about various types of ADR to

the litigants. This study further highlighted that Advocates have not told about ADR

mechanisms to the parties owing to their financial implications.10

Our research team found that there were separate empirical studies on arbitration and

mediation in India. However, until now, there is no specific empirical survey on the

ADR referral under section 89 of CPC. Our research team also believed that the study

on mediation might include pre-litigation mediation as well as the mediation of some

compoundable criminal cases. Hence, we cannot come to the conclusion that the

results of these studies are the complete resemblance of section 89 referral.

Though court-annexed mediation centers have been established for the purpose of

assisting the courts for CPC section 89 ADR referral still, there is no concrete data

available from these centers about the number of cases referred, number of cases

disposed of and types of disputes referred by the court under section 89 of CPC. Centre

for Legal Policy’s study on court-annexed mediations has revealed that renowned

8 Dr. Sandeepa Bhat B, 'Report Of The Research Project On Alternative Dispute Resolution

(ADR) Mechanism And Legal Aid In The Settlement Of Disputes: A Case Study Of State Of West Bengal, Department Of Justice, Ministry Of Law And Justice, Under The Scheme Of

Action Research And Studies On Judicial Reforms' (WB NUJS, Kolkata 2017)

<https://doj.gov.in/sites/default/files/Final%20Report%20West%20bengal%20NUJS.pdf>

accessed 22 August 2019. 9 Ibid. 10 Ibid.

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court-annexed mediation centers have not kept mediation data with the proper

classification of the nature of the disputes.11

Hence, our research team felt that before conducting a systematic review of section 89

implementation as emphasized by Justice S.U.Khan, there must be a study on

behavioural aspects of the stakeholders who are playing a pivotal role in the

implementation process of section 89 of CPC. Since Family Courts Act and Hindu

Marriage Act and Senior Citizens Act and other Acts also provide for ADR referral

options, our research team firmly believed that there must be a separate behavioural

study on the stakeholder about the implementation of section 89 of CPC.

1.2 Significance of the study:

While CPC Section 89 got amended in 1999, the advocates were reluctant about the

referral of pending cases to ADR mechanism. In Selam Advocates Bar Association

case Supreme Court has upheld the validity of Section 89 and lay down further

guidelines about the proper implementation of Section 89. Supreme Court urged the

all High Courts to frame mediation rules for the administration of mediation based on

the model rules submitted by the expert panel.

After the implementation of section 89 of CPC in 2002, it is about 18 years have gone.

However, the pending cases of the courts are mounting every day. In 2014, Justice

Khan has urged for reviewing the current implementation of section 89 of CPC by the

courts. In spite of trained the lawyers on ADR mechanisms and opening up of court-

annexed mediation centers, the disputants are preferring the traditional court

adjudication mechanism for resolving their disputes.

However, our research team found that section 89 requires behavioural changes to the

stakeholders. The success of section 89 Referral depends on the advocate’s guidance,

Litigant’s willingness and Judge’s appropriate understanding of each ADR mechanism

and the referral capability of a dispute under section 89. Hence, in this research project,

the there search team has analyzed how courts have implemented section 89 of civil

11Alok Prasanna Kumar and others, 'STRENGTHENING MEDIATION IN INDIA A Report

On Court-Connected Mediations' (Vidhi Centre for Legal Policy 2016)

<https://doj.gov.in/sites/default/files/Final%20Report%20of%20Vidhi%20Centre%20for%20%20Legal%20Policy.pdf> accessed 16 August 2019.

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procedure code mandates in pending and fresh disputes how advocates and parties of

the civil disputes have utilized this provision. The research team has further analyzed

which disputes have been mostly referred to under section 89 and which type of ADR

mechanism has been preferred by the parties and courts under section 89 referral. Our

research team also analyzed the possibilities of including other ADR mechanisms

under section 89 referral.

1.3 Scope and limitation of the study.

This research project has intended to find out the current implementation status of

section 89 of CPC especially whether the perception of the people got changed or not

with regards to resolving their disputes through ADR Referral. This project mostly

dealt with the ADR mechanisms which are expressly provided under section 89 for the

better analysis purpose. As highlighted earlier, to understand analyze the mindset of

the Litigants, Advocates and judges on section 89 referral have been the primary focus

of this research. It also looked upon the substantial aspects of section 89 and allied

provisions too.

Our research team has dealt with the detailed analysis of the law relating to mediation,

Lok Adalat and Permanent Lok Adalat for understanding the connective aspects

enshrined in section 89 of CPC. However, our research team has decided to have a

lesser discussion on Arbitration and Conciliation since the law is well settled on this

ADR mechanisms and most of the procedural aspects of arbitration and conciliation

have been taken care by Arbitration and Conciliation Act 1996.

Our research team has deliberated the possibilities of including more ADR

mechanisms in section 89 referral through various court decisions and scholarly

writings. Our research team has not conducted an empirical analysis of the suitability

of inclusion of this ADR mechanism in the Indian legal system, especially under

section 89 referral.

Initially, our research team has proposed to collect data from Litigants, Advocate, and

judges on the implementation of section 89 of CPC. Later, our research team was not

able to collect data from judges. The judges have shown their unwillingness to take

part in this survey. Hence, our research team has decided to drop data collection from

the sitting judges. Our research team has collected data from retired judges on the

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implementation of section 89 of CPC.

1.4 Research objectives:

Our research team has the following objectives for pursuing this research.

1. To analyze the referral process of the civil courts under Section 89 of the Civil

Procedure Code.

2. To examine the mindset of the litigants, advocates, judges about the referral

under Section 89 of the Civil Procedure Code.

3. To find out which ADR mechanism has been used by the courts and parties for

resolving their disputes under section 89 of the civil procedure code.

4. To examine the success rate of settlement of disputes through section 89

referral.

5. To examine whether the courts are following the guidelines lay down in

“Afcons Infrastructure Ltd. vs. Cherian Varkey Construction Co. (P) LTD”

case or not.

1.5 Hypothesis:

Our research team has the following hypothesis in this research,-

1. The Litigants are unaware of various ADR process.

2. Neither advocates nor judges have properly explained ADR referral to the

litigants.

3. Section 89 has not implemented in letter and spirit by the stakeholders.

1.6 Research Methodology:

In this research study, our research team has used the quantitative methodology to

examine the current status of implementation of section 89 of Civil Procedure Code

for examining the mindset/views of the litigants, advocates, judges about the referral

under section 89 of civil procedure code. Gujarat has constituted as the universe of the

study and the litigants, advocates, judges who have experienced in Munsif court or

subordinate court or district court have constituted as samples of the study. The above

said each stakeholder will be given different questioner on the basis of their role in the

effective implementation of section 89 of CPC.

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Data collection:

The research team has used both primary and secondary sources for this study. Primary

data was collected from litigants, advocates, and judges/retired judges from the state

of Gujarat. Secondary data was gathered from annual reports, review of studies,

articles and various publications. Primary data was collected from the stakeholders

through a survey method with the help of the questionnaire as well as an interview

schedule. The research team has used quantitative data analysis for this study and all

the ethical issues have been taken care of by the research team

Sampling:

The research team has used cluster sampling to conduct the study. The research team

has selected a district from each zone and total samples are five districts from five

zones as shown in Figure 1. Further, from each district, the research team has selected

20 litigants, advocates, and judges/retired judges from each district respectively.

Therefore, total sampling for this study are300 respondents. (as stated earlier, due to

non-participation, our research team was unable to collect data from sitting judges;

hence our sample size is 210) Detailed structured is enclosed in Fig.1.

Since sitting judges have not participated in our data collection, the sample size

becomes 210 (100 each from Litigants and advocates and 10 from retired judges).

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CHAPTER - II

HISTORY AND DEVELOPMENT OF ADR

IN INDIA

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CHAPTER - II

HISTORY AND DEVELOPMENT OFADR IN INDIA

“I realized that the true function of a lawyer was to unite parties riven asunder.

The lesson was so indelibly burnt into me that a large part of my time during the

twenty years of my practice as a lawyer was occupied in bringing about private

compromises of hundreds of cases. I lost nothing thereby- not even money,

certainly not my soul.”

Mahatma Gandhi12

2.1 ADR mechanisms in ancient India:

Resolution of disputes through ADR has built inherently in Indian culture. From Vedik

period onwards, Indian people have used nonadversarial methods for resolving their

disputes. Yajnavalkya and Narada highlighted that Kula, SRENI and Puga tribunals

were resolving the disputes in ancient India. Kula was a tribunal had resolved the

disputes between the members of family, community, caste or races and tribes. SRENI

was a tribunal consist of trade experts and it helped the traders to resolve their trade-

related disputes internally. Puga was a tribunal consist of people belong to various

communities but from the same locality. These tribunals are considered as Panchayats

and they followed a simple procedure for their decision making. The decision of Kula

may be challenged before SRENI and the decision of the SRENI can be challenged

before Pradvivaca and the final appeal was permissible before the king. These tribunals

had taken decisions on the interest of the party and community.

12 Gandhi and Mahadev H Desai, An Autobiography, [Or], The Story Of My Experiments With Truth (Prakash Books 2009).

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2.2 History of ADR in India:

2.2.1 History of Arbitration in India

Arbitration is considered as an adjudicatory alternate dispute resolution mechanism in

which the neutral third party known as the arbitrator will decide the dispute on merits.

As stated earlier, India has a vast history of arbitration. It even continued during

Islamic Dynasty. The Arabic word for arbitration is Tahkeem, while the word for an

arbitrator is Hakam. Islamic law mandated that arbitrator must be neutral and the

arbitral award cannot be challenged on merits.13

Britishers had given formal recognition to arbitration through legislation. The Bengal

Regulation Act 1772, Bombay Regulation Act 1789 and Madras Regulation Act 1802

had encouraged the parties to resolve their dispute through arbitration and the arbitral

award cannot be challenged on the merits of the disputes. In 1857 Civil procedure code

(Civil court procedure) got enacted for harmonizing the civil court's procedure across

British India except the courts established by Royal Charter. Section 312-325 of this

code dealt with the arbitration in suits. Section 326 and 327 of this Act dealt with the

arbitration without the intervention of the court. The code of Civil Procedure got

revised in 1882. The above-said sections of the 1857 Act placed in sections 506-526

of this Act without any change.14

Later, in 1899, the British Indian government had passed the Indian Arbitration Act

which was based on the British (England) Arbitration Act 1989. This Act was applied

to Provincial towns only. The unique feature of this Act was that the parties should

specify the name of the arbitrator in their arbitration agreement and the arbitrator may

be a sitting judge.

In 1908, the Civil procedure code got further revised and the provisions relating to

arbitration contained in section 89 clause (a) to (f) and, section 114(1) along with

13 O. P Malhotra, The Law and Practice of Arbitration and Conciliation (2nd edn, LexisNexis 2006). 14 'Evolution Of Arbitration In India - Litigation, Mediation & Arbitration - India'

(Mondaq.com, 2016)

<http://www.mondaq.com/india/x/537190/Arbitration+Dispute+Resolution/Evolution+Of+Arbitration+In+India> accessed 7 August 2019.

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schedule I. This provision had not made any major change in the existing arbitration

Law of that time. However, there was a hope that the British Government might enact

comprehensive legislation for arbitration at any time.

In 1940 Indian Arbitration Act got enacted and it repealed the CPC section 89 (a)-(f)

and schedule II. Still, the1940 Act had some defects such as no provision for

replacement of arbitrator in case of death or another incapacity of the arbitrator,

unethical practices of the arbitrator, and difference proceedings for setting aside the

arbitral award and nullity of the arbitral award and much intervention of the court.

Further, all High Courts were having a different set of rules for arbitration-related

cases. As a result, the arbitration and Conciliation Act got enacted in 1996.

The 1996 Arbitration and Conciliation Act has consolidated the law related to domestic

arbitration, international commercial arbitration, and enforcement of foreign arbitral

awards. It has minimized the judicial intervention and has provided the mechanism for

removal and replacement of arbitrator. The 1996 Act got further amended in 2015 for

ensuring speedy disposal of disputes by the arbitral tribunals, encouraging institutional

arbitration and ensuring fairness in arbitral proceedings it got further amended in 2019.

Once, the parties have agreed to resolve their disputes through arbitration then, they

cannot approach courts for the resolution of the same disputes. The parties have the

freedom to appoint the arbitrator on their choice and they can fix the place and

language of the arbitration. The arbitral tribunal hears the dispute on merits and the

arbitral award is considered as the decree of the courts. Unless the arbitral award has

been made on some defects mentioned under section 34 of Indian Arbitration and

Conciliation Act, it is always enforceable by courts.

2.2.2 History of conciliation in India:

Conciliation is one of non-adjudicatory dispute resolution mechanism in which a

neutral third party helps the disputing parties to resolve their disputes amicably. In

conciliation, the conciliator may give his views and suggestions to the parties for the

resolution of the disputes. In conciliation, the conciliator plays an active role.

Conciliation got legal recognition under the Trade Disputes Act 1920. As per this Act

board of inquiry had given the power to conciliate the employment disputes. However,

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this Act had not implemented by the British government. In 1929, the British

government re-enacted Trade Disputes Act 1929 and it contained voluntary

conciliation. The board of conciliation had been entrusted the power of resolving

labour disputes through conciliation. The conciliation board consists of 4 members

each from both employer and employee and one independent chairman. A royal

commission of labour had pointed out the conciliation mechanism under the Trade

Disputes Act was not fully utilized by the parties and government. The state of Bombay

had enacted Bombay trade Disputes Conciliation Act 1934. As per this Act, the

Bombay government entrusted the conciliation power to labour commissioner. Later,

the central government enacted Industrial Disputes Actin 1947. This Act has created

two different bodies for providing conciliation to the disputants namely conciliation

board and conciliation officer.15

Law Commission of India in its 77th report had recommended that incorporation of

Conciliation Courts” model which was prevailing in Japan, France, and Norway can

be incorporated in Indian judicial system and civil cases can be resolved through

conciliation.16 In 1980, UNCITRAL has framed Conciliation Rules for resolving

international commercial disputes through Conciliation uniformly across the world.

This model rule has been adopted by the UN general assembly on December 4th, 1980.

India is one of the signatories to these rules. Hence, it has an obligation to incorporate

the same in its domestic legislation.17

Based on the experiences of conciliation courts in various countries, the Himachal

Pradesh High Court had initiated a “Conciliation Court” pilot project in the entire state

of Himachal Pradesh and asked the trial courts of civil side to refer all the cases to

Conciliation Courts before the commencement of trial. It got substantial success.

However, there were some difficulties faced by the conciliation courts including the

impossibility of compelling the parties to appear before the conciliation courts. Law

Commission of India in its 129th report had recommended that the conciliation court

15(Shodhganga.inflibnet.ac.in)

<http://shodhganga.inflibnet.ac.in/bitstream/10603/26666/11/11_chapter%205.pdf> accessed 22 August 2019. 16 '77Th Report on Delay and Arears in Trial Courts 1978' (LAW COMMISSION OF INDIA

2014) <http://lawcommissionofindia.nic.in/reports/Report245.pdf> accessed 22 August 2019. 17 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (UNCITRAL) UNCITRAL Conciliation Rules https://www.uncitral.org/pdf/english/texts/arbitration/conc-

rules/conc-rules-e.pdf.

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system which was there in the state of Himachal Pradesh can be implemented in across

the country. It suggested as for as possible, the conciliation courts must be presided by

the judges who are not going to hear the same cases in the trial.18

In the same 129th report, the law commission highlighted the concerns of judges on the

referral of pending disputes to arbitration especially the 1940 arbitration Act did not

contain any provision for the referral of the pending dispute to arbitration and stated

that this issue will be taken in another report. Meanwhile, the Indian government has

amended the CPC amendment Act and included the Law Commission's

recommendations on the conciliation court system under section 89 of CPC.19&20

2.2.3 History of mediation in India

Mediation is known as third-party facilitated negotiation in which, the neutral third

party will facilitate the disputants to come with settlement. In mediation, the neutral

party known as mediator plays a passive role. Unlike Conciliation, the mediation

moment got started in the late nineties. In 1995-96, The Indian Supreme Court under

the leadership of Justice Mr A. M. Ahmadi along with the Institute for Study and

Development of Legal Systems [ISDLS] which is situated at San Francisco had carried

out an Indo-U.S. joint study on “delay in Indian justice system” and finding solutions

to overcome this problem. Every High Court was asked to appoint a study team to

cooperate with the delegates of ISDLS. A centralized study team had gathered all

information from High Courts and analyzed it. After the detailed review of situation

India, the team had given appropriate suggestions on civil case management with

reference to Indian scenario. ISDLS had also suggested for the promotion of mediation

in India.21

18 'Urban Litigation: Mediation As Alternative To Adjudication' (LAW COMMISSION OF INDIA 1998) <http://lawcommissionofindia.nic.in/101-169/Report129.pdf> accessed 12

August 2019. 19 Ibid. 20 Ibid. 21 Mediation Training Manual Of India (Mediation and Conciliation Project Committee

Supreme Court of India, Delhi)

<https://sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf> accessed 12 August 2019.

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ISDLS had rendered its cooperation for promoting mediation in India. It had sent its

American trainers to India for giving mediation training. The first mediation training

had conducted in 2000 in Ahmedabad, Gujarat. Two Indian lawyers have created a

trust called Institute for Arbitration Mediation Legal Education and Development

(AMLEAD) for training the mediators. This institute has conducted a lot of training

programs for the mediators since its inception. Ahmedabad Mediation Centre was

established on 22 July 2002, Which is the first lawyer managed mediation center in

India.

On 2002, the Chief Justice of India had called a meeting of all High Court judges for

emphasizing the importance of mediation and the requirement of implementation of

section 89 of CPC. In January 2003, AMLEAD and Gujarat Law Society have

developed 32 hours certificate course on mediation. The U.S. Educational Foundation

in India (USEFI) had conducted training workshops at Jodhpur, Hyderabad, and

Bombay in June 2003. The first court-annexed mediation center got established at

Chennai High Court on April 1, 2005. After this, many courts annexed mediation

centers got established in various High Courts. Delhi District Courts asked ISDLS to

trained their judges as mediators and established court-annexed mediation centers in

Trial Courts. Karnataka High Court also established a court-annexed meditation center

with the help of ISDLS.

On 2005 Justice Mr R.C. Lahoti, then Chief Justice of India had constituted The

Mediation and Conciliation Project Committee (MCPC for the promotion of

mediation. This committee consists of Supreme Court judges, High Court judges,

advocates, government secretaries and members from NLSA. It had proposed a pilot

project of judicial mediation in Tis Hazari Courts. Based on the success of this project,

the committee had extended the same project in other courts in Delhi and across the

country. Now court-annexed mediation centers are functioning in many trial courts

across the country including Allahabad, Lucknow, Chandigarh, Ahmedabad, Rajkot,

Jamnagar, Surat.22

MCPC has been entrusted the task of providing training to the mediators, trainees,

judges. MCPC has proposed 40 hours of training program coupled with 10 actual

22 Ibid.

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mediations as a requirement for a person to get mediation accreditation from MCPC.

It had conducted 52 mediation training program across the country till 2010. MCPC

has framed a special 20 hours training program for trainers. A person who is an

accredited mediator by MCPC and he has conducted at least 50 mediation is eligible

to attend this training program.23

Himachal Pradesh High Court has framed a scheme called “mediation Judge” scheme.

This scheme states that a judge who has undergone 30 hours mediation training could

be appointed as “mediation judge” for a district. He can hear the cases which are

referred by other courts. However, he cannot conduct the mediation on the cases which

have been referred from his own court. Further, the “mediation judge” cannot hear the

same dispute in the judicial proceedings in the future.24

2.2.3.1 Differences between court-annexed mediation and private mediation

Court annexed mediation Private mediation

The court shall provide the

mediation services

The private person provides the service

It is considered as part and

parcel of the judicial system.

It is not considered as part of the judicial system.

The mediators may be a judicial

officer or an advocate.

Any person can be a private mediator.

The mediator must have

completed MCPC training.

The mediator might have completed mediation

training from any renowned institution.25

2.2.3.4 Difference between Conciliation and Mediation:

23http://sonitpurjudiciary.gov.in/DLSA/Act,s%20&%20Rule/Mediation_and_Concillation_Project_Committe0001.pdf 24 Hand book on Mediation, Himachal Pradesh High Court, 2014 available at

https://hphighcourt.nic.in/pdf/handbookonmediation2014.pdfhttp://sonitpurjudiciary.gov.in/D

LSA/Act,s%20&%20Rule/Mediation_and_Concillation_Project_Committe0001.pdf 25Mediation and Conciliation Project Committee, Mediation Manual of India 2010 available at

https://www.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf.

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The terms Mediation and Conciliation are used interchangeably by various jurists as

well as various Indian Acts. Across the globe, there is no uniform principal on the

difference between the two dispute resolution mechanisms. Industrial Disputes Act has

stated that Conciliation officers are “charged with the duty of mediating and promoting

settlement of industrial disputes.”26

Henry J. Brown explained that “Mediation is a facilitative process in which disputing

parties engage the assistance of an impartial third party, the mediator, who helps them

to try to arrive at an agreed resolution of their dispute. The mediator has no authority

to make any decisions that are binding on them, but uses certain procedures,

techniques, and skills to help them to negotiate an agreed resolution of their dispute

without adjudication.”27

One of the renowned textbooks on ADR stated that “Mediation is negotiation carried

out with the assistance of a third party. The mediator, in contrast to the arbitrator or

judge, has no power to impose an outcome on disputing parties.”28

Justice M. Jagannadha Rao highlighted that In India Conciliator has wider powers than

a mediator. The conciliator can make a proposal for settlement and he can formulate

and reformulate the terms of settlement of the dispute whereas, the mediator facilitates

the parties to come with settlement.29 He further stated that in the USA, the Conciliator

cannot be a proactive role for the resolution whereas, the mediator plays such a role.30

He has compared the positions in various countries and finally concluded that the

Indian interpretation of the term “Conciliation” is in accordance with UNCITRAL

Conciliation rules and Japan, UK countries are interpreting the term Conciliation as

the same Indian Interpretation.31 Our research team has agreed to the view of Justice

Jagannadha Rao’s interpretation of the term “Conciliation”.

26 Industrial Disputes Act, 1947, s 4(1). 27 Henry J Brown and Arthur L Marriott, ADR Principles and Practice (2nd edn, Sweet &

Maxwell 1997). 28 Stephen B Goldberg and others, Dispute Resolution (Aspen Publishers 2014). 29Justice M. Jagannadha Rao, 'CONCEPTS OF CONCILIATION AND MEDIATION AND

THEIR DIFFERENCES' (Lawcommissionofindia.nic.in)

<http://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20Rao%201.pdf> accessed

23 August 2019. 30 Ibid. 31 Ibid.

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There are some Acts mandate the courts to conciliate/mediate their disputes before it

proceeds further hearing of the disputes. Hindu marriage Act mandates the trial court

must try for the reconciliation of the disputants to resolve their dispute amicably before

preceding its hearings. It can adjourn the proceedings about 15 days for the parties to

conciliate the dispute.32 However, the court shall not refer to the following matrimonial

disputes for conciliation.

a. Either of the spouses ceased to be a Hindu

b. Either of the spouses has been incurable of unsound mind

c. Either of the spouses has been suffering from a virulent and incurable form of

leprosy

d. Either of the spouses has been suffering from the general disease in a

communicable form;

e. Either of the spouses has renounced the world by entering any religious order;

f. Either of the spouses has not been heard of as being alive for a period of seven

years.33

Similarly, The Family Courts Act also encourages the resolution of the matrimonial

dispute through conciliation and mediation.34 The family courts have entrusted the

obligation to look at the possibilities of settlement of disputes by the parties through

conciliation and mediation. The family court shall adjourn the court hearings if there

is any possibility of settlement of the dispute.35 The family court can pass the decree

on the basis of such settlement of the parties. The decree passed by the family court

upon settlement of the parties shall be final and binding and it cannot be challenged

through an appeal.36

The recently amended Commercial Courts Act contains a chapter on Pre-Institution

Mediation and Settlement which make it mandatory to the disputants before initiation

32 The Hindu Marriage Act 1955, s 23(2). 33 The Hindu Marriage Act 1955, s 23(2) proviso. 34The preamble of Family Courts Act, 1984 states that the purpose of establishing family courts

for promoting conciliation in matrimonial disputes and ensuring the speedy disposal of the

matrimonial disputes. 35 The Family Courts Act 1984, s 9. 36 The Family Courts Act, 1984 s 19.

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of the suit except there is a requirement of urgent relief from the court.37 The central

government has been given the powers to make rules relating to pre-initiation

mediation.38 The mediation commenced under this Act should be concluded within 3

months from the date of the mediation application filed by the plaintiff.39 The duration

of the mediation period may be extended further two months with the consent of the

parties.40 If the disputants have arrived at a settlement in the mediation then, the same

shall be converted into written form and signed by the disputants along with

mediator.41 This settlement agreement shall have the effect of an arbitral award on the

basis of the settlement agreement under section 30 of Arbitration and Conciliation

Act.42 The period which the parties have spent on mediation shall be excluded for the

purpose of calculating the limitation period for the initiation of the suit.43

2.2.4 Lok Adalat:

Before understanding Lok Adalat and its statutory recognition, it is important to look

at the history of Legal Services Authorities Act so that we could get the sense of how

Lok Adalat attain the mandatory ADR referral status. Constitution of India mandates

the state to ensure that the citizens shall not be denied justice because of economic or

other disability.44

In 1958, the Law Commission of India in its 14th report on “Reform of Judicial

Administration” had strongly advocated the need for rendering legal aid to poor

litigants and categorically stated that' the rendering of legal aid to the poor litigants is

not a minor problem of procedural law but a question of fundamental character'.

37

The Commercial Courts, Commercial Division and Commercial Appellate Division Of High

Courts (Amendment) Act 2018 s 12 A (1). 38

The Commercial Courts, Commercial Division and Commercial Appellate Division of High

Courts (Amendment) Act, 2018 s12 A (2). 39


Courts (Amendment) Act, 2018 s 12 A (3). 40


Courts (Amendment) Act, 2018 s 12 A (4). 41 Ibid. 42


Courts (Amendment) Act, 2018 s 12 A (5). 43

The Commercial Courts, Commercial Division And Commercial Appellate Division of High

Courts (Amendment) Act, 2018 s 12 A (3) 2nd proviso. 44 Constitution of India, Article 39A.

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In 1972, The government of India had constituted a committee under the Chairmanship

of honorable Mr. V.R. Krishna Iyer, then a Member of the Law Commission was

entrusted the task of possibilities of making available to the weaker sections of the

community and persons of limited means in general and citizens belonging to the

socially and educationally backward class in particular facilities for,

i) Legal advice so as to make them aware of their constitutional and legal rights and

obligations; and

ii) Legal aid in proceedings before Civil, Criminal, and Revenue Courts so as to make

justice more easily available to all sections of the community.

With a view to implementing the report of the above said Committee and the

implementation of its constitutional mandate under article 39A the government of

India had constituted the "Committee for Implementing Legal Aid Schemes (CILAS),

Mr. Justice P.N. Bhagwati was the chairman of this committee. This Committee

formulated a broad pattern of the legal aid program to be set up in the country. It gave

stress on preventive legal aid programme with a view to creating legal awareness

amongst the people. It also suggested dynamic and activist programmes to carry legal

services to the doorsteps of the rural population, to promote community mobilization

and rights enforcement through public interest litigations and other statutes. The

Committee also framed a model scheme for the establishment of State Legal Aid and

Advice Boards, as also, Committees at the High Court, District and taluk levels to cater

legal services to the people at large. In the year 1987, the Legal Services Authorities

Act was enacted by the parliament with a view to provide free and competent legal

services and to ensure opportunity for securing justice to the downtrodden class of the

society.45

As per the powers were given by Legal Services Authorities Act, Taluk legal services

committee, High Court legal services committee, Supreme Court Legal Services

Committee, National legal services authority, state legal services authority, district

legal services authority may organize Lok Adalats as per their convenient place and

time.46 Lok Adalat is supposed to preside over one judicial member (who is a sitting

45 'United India Insurance Co. Ltd Vs Ajay Sinha & Anr on 13 May, 2008' (Indiankanoon.org) <https://indiankanoon.org/doc/1100992/> accessed 23 August 2019. 46 Legal Services Authorities Act, 1987 s 19(1).

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judge or retired judge) and other members (who has experience in the legal field or

who is a social activist).47 Lok Adalats can hear the pending cases or the cases which

otherwise capable of heard by the court. However, Lok Adalats cannot hear the cases

which are related to non-compoundable offenses.48 Upon the request of both parties or

upon the application of the one-party the court may refer the pending case to Lok

Adalat. The court on its own motion after taking into account the nature of the dispute,

it can refer the pending dispute to Lok Adalat.49

Lok Adalat is an innovative form of ADR mechanism developed by India for resolving

the disputes amicably. Lok Adalat means “people’s court”. Lok Adalat included

conciliation and negotiation methods together for the resolution of disputes. In Lok

Adalat, the retired or sitting judge will help the parties to come with settlement. The

first Lok Adalat was held on March 14, 1982, at Junagarh in Gujarat. Maharashtra

commenced Lok Nyayalaya in 1984. Lok Adalat obtains the statutory recognition

under Legal services authorities Act 1987. Chapter V, sections 18-22, 22A, 22B deal

with Lok Adalat.

Lok Adalat cannot decide the case on merits; it facilitates the parties to come with

settlement.50 Lok Adalat can pass an award on the basis of settlement of the parties

and Lok Adalat’s award become final and binding the parties.51If the Lok Adalat is

unable to settle the referred case then, it sends back the case to the same court for

further hearings.52 If there is no settlement on the dispute which has reached the Lok

Adalat at the first instance then, Lok Adalat must advise the parties to approach

appropriate court for getting their remedies.53

Though Legal Services Authorities Act contained an overriding provision, the Trial

Courts were encountered with the following difficulties Prior to the enactment of

section 89of CPC,-

47 Legal Services Authorities Act, 1987 s 19(2). 48 Legal Services Authorities Act, 1987 s 19(5). 49 Legal Services Authorities Act, 1987 s 20(1). 50 Legal Services Authorities Act, 1987 s 20(3). 51 Legal Services Authorities Act, 1985 s 21. 52 Legal Services Authorities Act, 1987 s 20(5). 53 Legal Services Authorities Act, 1987 s 20(6).

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i) Whether the pending disputes can be referred to Lok Adalat by the Court on its own

motion or not?

ii) Whether the consent of all parties was necessary or not for the Lok Adalat referral by

a Civil Court?

In Venkatesh v. Oriental Insurance Co. Ltd.,54 Karnataka High Court had given the

affirmative answer to these questions in the following words,-

“a Court can suo-moto or at the request of even one of the parties, refer the case to the

Lok Adalat provided that it is done after giving a hearing to all parties and it is satisfied

that there are chances of settlement or that the case is a fit one to be taken cognizance

by the Lok Adalat, and records such satisfaction. In fact, we may say that Courts owe

a duty to examine all cases to find out whether they are fit cases for reference to Lok

Adalats. If 8 to 10 years old cases are pending in a Court and if cases which are 3 or 4

years old have no chance of being taken up for trial in the immediate near future, there

is no reason why a conciliation should not be attempted in such cases, by reference to

Lok Adalat. In fact, with the establishment of permanent Lok Adalats, there is no

reason why the Court should not, at the time of framing issues, apply its mind whether

the case is a fit case for reference to Lok Adalat and if found fit, after giving a hearing

to the parties refer it to Lok Adalat. The Bar and Bench owe a duty to identify these

cases which deserve negotiated settlement and settle such cases. The Lok Adalat

movement under the Act will become a success only when all types of cases, and not

only motor accident cases and petty cases, are settled by conciliation.”55

In Punjab National Bank v. Lakshmichand Rai,56 after the detailed analysis of the

Legal Services Authorities Act and section 96 of CPC, High Court of Madhya Pradesh

held that “Lok Adalat is conducted under an independent enactment and once the

award is made by a Lok Adalat the right of appeal shall be governed by the provisions

of the Legal Services Authorities Act. When it has been specifically barred under

provisions of Section 21(2), no appeal can be filed against the award under Section 96

of CPC. This case was decided by the High Court before the implementation of section

54 'H V Venkatesh Vs Oriental Insurance Company Limited And Ors - Citation 374947 - Court

Judgment Legalcrystal' (Legalcrystal.com) <https://www.legalcrystal.com/case/374947/h-v-

venkatesh-vs-oriental-insurance> accessed 23 August 2019. 55 Ibid. 56AIR 2000 MP 301.

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89 of CPC.”57 In this case, both parties had agreed to refer their pending recovery debt

dispute to Lok Adalat. Upon the request, the additional district judge allowed the

parties to refer their dispute to Lok Adalat and the Lok Adalat had passed an award

upon settlement arrangement of the parties. Later, one of the party had challenged the

validity of such compromise award by way of an appeal under section 96 of CPC.58

In Kamal Mehta v. General Manager,59 Rajasthan Roadways Transport Corporation,

Punjab and Haryana High Court observed that Lok Adalat can pass an award in a

dispute upon the basis of the compromise between the parties; it cannot transgression

the powers of the court and pass an award on merits. As per the Legal Services

Authorities Act, Lok Adalat award become final and binding; however, if the award is

not passed on the compromise then, it does not attain finality. The High Court further

held that the Legal Services Authorities Act does not specify the remedy against the

Lok Adalat award especially if there is any objection against such award.

In Parmod vs Jagbir Singh And Ors, 60 Punjab and Haryana High Court held that the

aggrieved person of the Lok Adalat award cannot invoke section 151 of CPC for

challenging the award; he can invoke supervisory powers of High Court under article

227 of Indian Constitution for challenging the Lok Adalat award.

In State of Punjab & Anr. Vs. Jalour Singh, Supreme Court explained the remedy

which is available to the aggrieved party of a Lok Adalat award in the following words-

“It is true that where an award is made by the Lok Adalat in terms of a settlement

arrived at between the parties which are duly signed by parties and annexed to the

award of the Lok Adalat, it becomes final and binding on the parties to settlement and

becomes executable as if it is a decree of a civil court. And no appeal lies against it to

any court. If any party wants to challenge such an award based on settlement, it can be

done only by filing a petition under Article 226 and/or Article 227 of the Constitution,

that too on very limited grounds. But where no compromise or settlement is signed by

the parties and the order of the Lok Adalat does not refer to any settlement. But directs

57 Ibid. 58 Ibid. 59 Kamal Mehta v General Manager, Rajasthan Roadways Transport Corporation and Anr., FAO No. 798 of 1999. 60 Parmod v Jagbir Singh And Ors, [2003] 133 PLR 365.

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the respondent to either make the payment if it agrees to the order or approach the

High Court for disposal of appeal on merits. If it does not agree. Is not an award of the

Lok Adalat. The question of challenging such an order in a petition under Article 227

does not arise. As already noticed. In such a situation. the high court ought to have

heard and disposed of the appeal on merits.”61

In this case, a motor vehicle claim appeal was pending before the High Court got

settled through Lok Adalat by way of compromise. Later, one of the party wanted to

challenge the Lok Adalat award under article 226/227. However, the High Court had

refused to hear the case. Supreme Court had remanded the case back to the High Court

for its disposal.62

Our research team would like to highlight the anomalies still prevailing over with

regards to challenging the Lok Adalat’s award in spite of the Supreme Court’s

precedent. In Bharvagi Constructions v Kothakapu Muthyam Reddy63 case, A Lok

Adalat award got challenged before an additional district judge by way of fresh suit.

In this case, the plaintiffs and defendants had entered into a compromise arrangement

in a pending agreement of sale dispute. The Lok Adalat had passed an award on the

basis of the compromise agreement between the parties. Later, some of the parties

would like to challenge the Lok Adalat award since some of the Defendants had

misrepresented the plaintiffs and they had taken more land from them because of their

illiteracy. The plaintiffs had filed declaratory suit for challenging the Lok Adalat award

was illegal. The additional district judge had rejected the plaint on the ground that this

suit was impliedly barred by Law under order 7, rule 11(d) of CPC and asked the

plaintiffs to approach High Court under 226/227 for getting suitable remedy. Being

aggrieved by this decision, the plaintiffs had approached the High Court of Andhra

Pradesh. Andhra High Court had reversed the trial court’s decision and remanded the

case to the trial court for its fresh adjudication. The defendants of the suit had

approached the Supreme Court for challenging the High Court’s decision. Supreme

Court held that Lok Adalat award cannot be challenged by way of the fresh suit before

61State of Punjab & Anr. v Jalour Singh &Ors [2008] 2 SCC 660. 62 Ibid. 63Bharvagi Constructions & Anr v Kothakapu Muthyam Reddy & Ors. (Civil Appeal No.11345

OF 2017).

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the ordinary Civil court and it can be challenged by way of a writ under article 226/227

before the High Court and restored the trial court’s decision. Supreme Court asked the

plaintiff/Respondents to file a writ petition before the High Court for challenging the

legality of Lok Adalat’s award. This case took at least 10 years for finding out the

suitable forum and appropriate provision/mechanism in which a Lok Adalat award can

be challenged.

In Smt. Soni Kumari v Sri Akhand Pratap Singh, Lok Adalat passed a decree on the

basis of the compromised deed of the parties on Divorce. Later, the wife filed an appeal

before the High Court for challenging the Lok Adalat decree. She contended that the

procedure lay down in Family Courts Act and Legal Services Authorities Act were not

followed and she had been coerced to give her consent for the compromise. However,

the High Court dismissed the appeal and stated that Lok Adalat award cannot be

challenged through appeal; it can be challenged through writ under article 226/227 of

Indian Constitution, that too in very limited grounds.64

Since, Section 21 of Legal Services Authorities Act states that “Every award of Lok

Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order

of any other Court” The following ambiguity posed by some people about the nature

of Lok Adalat’s award-

i) when a criminal case has been referred to Lok Adalat by the criminal court and the

Lok Adalat has passed an award then, whether that award is considered as a decree of

civil court or not.

ii) When the criminal court has referred the matter to Lok Adalat and the dispute got

resolved through Lok Adalat award then, what is the role of the criminal court which

has referred that case?

iii) What is the remedy available to the Lok Adalat award holder when the other party fails

to comply with the terms of the award especially if the award is arising out of a criminal

case?

64 Smt. Soni Kumari v Sri Akhand Pratap Sing, Allahabad HC, 2018 available at

https://indiankanoon.org/doc/4312893/.

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In K.N. Govindan Kutty Menon vs C.D. Shaji,65 Supreme Court has come across a

question Whether the magistrate court’s referral of a case which falls under section

138 Negotiable Instruments Act and the award passed by the Lok Adalat is considered

as Decree of the civil court and executable by the civil court or not. In this case, a

magistrate court had referred a 138 Negotiable Instruments Act case to the Lok Adalat.

The Lok Adalat passed the award on the basis of the agreement of the parties. Later,

the award debtor had not complied with the award; hence, the award holder had filed

an execution petition before the principal Munsif court. However, the Munsif court

had rejected the execution petition stating that Lok Adalat’s award on section 138 of

Negotiable Instruments Act was not a decree. High Court of Kerala had upheld the

view of Munsif Court. Later, he approached the Supreme Court under a special leave

petition. Supreme Court directed the Munsif Court (execution court) to execution

petition and proceed further.66

In this case, the Supreme Court had made the following observations-

“There is no restriction on the power of the Lok Adalat to pass an award based on the

compromise arrived at between the parties in respect of cases referred to by various

Courts (both civil and criminal), Tribunals, Family court, Rent Control Court,

Consumer Redressal Forum, Motor Accidents Claims Tribunal and other Forums of

similar nature. Even if a matter is referred by a criminal court under Section 138 of the

Negotiable Instruments Act, 1881 and by virtue of the deeming provisions, the award

passed by the Lok Adalat based on a compromise has to be treated as a decree capable

of execution by a civil court.”

Prior to the Supreme Court’s decision in the above case, there were some High Court’s

decisions in the same line. In Subhash NarasappaMangrule (M/S) and Others vs.

Sidramappa Jagdevappa Unnad, Bombay High Court held that Lok Adalat’s award

passed in Cheque dishonor case is considered as civil court decree and it can be

executable under Civil Procedure Code.67

65 K.N. Govindan Kutty Menon v C.D. Shaji, SC, 2011. Available at Indian Kanoon -

http://indiankanoon.org/doc/236954039/ 1. 66 Ibid. 67Subhash Narasappa Mangrule (M/S) and Others v Sidramappa Jagdevappa Unnad, [2009] (3)

Mh.L.J. 857.

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In M/s Valarmathi Oil Industries & Anr. vs. M/s Saradhi Ginning Factory,68 Madras

High Court held that once Lok Adalat passed an award in the criminal referral case

then the magistrate (criminal referral court) become functus officio and it cannot hear

the case further. The award holder can file an execution petition before the civil court

for getting award amount. In this case, a magistrate court had imposed one-year

imprisonment to the accused since he had not complied with the award given by Lok

Adalat in a cheque dishonor case under section 138 of Negotiable Instruments Act.

The accused had challenged this decision before the Sessions Court. The session’s

court had suspended the sentence for some period and asked the accused to deposit the

award amount before the trial (magistrate) court within that period. It further stated

that if the accused failed to deposit the amount then the suspension of a sentence

automatically become cancelled. Being aggrieved by this decision, the accused had

filed a criminal revision petition before the Madras High Court. The High Court set

aside the decisions of the sessions court and magistrate court.69

Lok Adalats can help the parties for the speedy disposal of the cases however, it is

equally essential that Lok Adalat awards are supposed to give adequate legal justice to

the disputants. In the name of speedy disposal, legal rights of the parties should not be

compromised. The presiding officer of the Lok Adalat must ensure that the Lok

Adalat’s award shall do not compromise the legal rights of the parties, especially the

rights of poor and indigenous people.

In Manju Gupta vs National Insurance Co. Ltd.,70 the Allahabad High Court Had

taken suo moto cognizance of an award passed by Lok Adalat on an apparent error and

grave injustice in a motor vehicle claim. In this case, a 3 years old child was met with

an accident and suffered some permanent disability. The child’s father made a claim

of 2,20,000 before the Motor Vehicles Claims Tribunal. The matter was referred to

Lok Adalat for its settlement. Finally, the Lok Adalat passed the claim of 30,000 on

the basis of the settlement agreement between the parties. Later, this award was

criticized because of non-meritorious and grave injustice to the claimant. High Court

found that the learned 4th Additional District Judge was the presiding judge of the

68M/s Valarmathi Oil Industries & Anr. v M/s Saradhi Ginning Factory, AIR [2009] Madras

180. 69 Ibid. 70 Manju Gupta v National Insurance Co. Ltd. [1994] ACC 242, 1994 ACJ 1036.

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claim petition as well as the Lok Adalat proceedings and he had failed to taken care of

the legal obligation enshrined under order 32, rule 7 that the court must ensure that

minor’s interest should be protected. The High Court further observed that the

compensation amount (30,000) was not adequate for a minor child. The High Court

had enhanced the compensation as 1,10,000. While delivering this judgment, the

Allahabad High Court had made the following observation in this case-

“The purpose of Lok Adalat no doubt is to settle claims and disputes between the

parties expeditiously, but at the same time, the court should not forget its obligation

under law to protect the interest of the parties, especially the claims of minors and

persons of unsound mind. In fact, the court should keep a watch while making

settlement of claims in Lok Adalats. It cannot be lost sight of that a litigant under

pressure of time and money spent in courts easily succumbs to the pressure and agrees

to the small amounts which may not be adequate to compensate the actual loss

suffered. The court should keep a watch that no such pressure prevails on a litigant.

This responsibility becomes heavier when the court or Tribunal is dealing with cases

of minors or persons of unsound mind. In Lok Adalats in the name of speedy justice,

the court should not sacrifice the real cause of justice for which confidence has been

reposed in them by the society.”

NLSA has made a lot of initiation for the promotion of Lok Adalat. National level Lok

Adalat has been organized in every month for a particular subject matter across the

country. Now mobile Lok Adalats are organized in various parts of the country at

regular intervals.71 As on September 2015, 15.14 lakhs, Lok Adalats have been

organized in India since its inception and there are about 8.25 crore cases have been

settled through this mechanism.72 Till 2017, about 1,76,196 Lok Adalats were

conducted in the state of Gujarat and there were 7955142 disputes got resolved

including 224,549 disputes related to motor vehicle claims by Lok Adalat.73

71 https://nalsa.gov.in/lok-Adalat. 72 https://nalsa.gov.in/lok-Adalat. 73https://nalsa.gov.in/sites/default/files/document/STATEMENT%20SHOWNG%20THE%20

NUMBER%20OF%20LOK%20ADALATS%20HELD%20BY%20STATE%20LEGAL%20

SERVICES%20AUTHORITIES%20UNDER%20LEGAL%20SERVICES%20AUTHORITIES%20ACT,%201987%20AND%20CASES%20SETTLED%20SINCE%20INCEPTION%2

0(AS%20ON%2030.06.2017)..pdf

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2.2.5 Permanent Lok Adalat:

During the second annual state legal services authorities meet 1999, Former Chief

Justice Dr. A.S. Anand airing stated that “There will be no harm if Legal Services

Authorities Act is suitably amended to provide that in case, in a matter before it, the

Judges of the Lok Adalats are satisfied that one of the parties is unreasonably opposing

a reasonable settlement and has no valid defense whatsoever against the claim of the

opposite party, they may pass an award on the basis of the materials before them

without the consent of one or more parties. It may also be provided that against such

awards, there would be one appeal to the court to which the appeal would have gone

if a court had decided the matter. This course, I think, would give relief to a very large

number of litigants coming to Lok Adalats at the pre-litigation stage as well as in

pending matters.”74

The Indian government has amended the Legal Services authorities Act in 2002 and

inserted a new institution called permanent Lok Adalat. The permanent Lok Adalat

can hear the disputes relating to public utility services like transportation, electricity,

postal services, telecommunication services, hospital, and dispensary services. Section

22A and 22B of Legal Services Authorities Act gives the powers to union government

as well as state government to include any other services as “Public Utility Services”

through notification.75

The permanent Lok Adalat is presided over by the chairman and two members. The

chairman must be a retired or sitting district judge or additional district judge or who

has a higher rank than the district judge. The other two members must have the

experience in dealing with public utility services and they are appointed by the central

government or state government as the case may be after consulting with the respective

legal services authorities.76

Either party can approach permanent Lok Adalat for the resolution of their dispute if

the dispute is related to the public utility services as mentioned in section 22A and

notified by the government. Whenever a dispute is brought before the Lok Adalat, the

74 Rebecca Furtado, 'Permanent Lok Adalats- A Critical Study - Ipleaders' (iPleaders, 2016)

<https://blog.ipleaders.in/permanent-lok-adalats-critical-study/> accessed 23 August 2019. 75 Legal Services Authorities Act 1987 s 22A(b) and 22B(1). 76 Legal Services Authorities Act 1987 s 22B.

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other forum cannot hear the same case until the time Lok Adalat complete its

proceedings.77 However, Lok Adalat cannot hear the public utility services related

disputes if the pecuniary value of the dispute exceeds INR 10 Lakhs.78

At the first instance, Lok Adalat must try to resolve the case through conciliation; if

there is no settlement then, it can pass an award on the merits of the case.79 Permanent

Lok Adalat’s award is considered as a decree of the court and it is final and binding

upon the parties.80 However, if there is any grave injustice then, the award of

permanent Lok Adalat can be challenged before the constitutional courts. NLSA has

stated that as on 31/1/2016, there are about 239 permanent Lok Adalats are functioning

across the country. And the permanent Lok Adalats have settled 1, 03,559 cases.81

Supreme Court observed the peculiar adjudicatory role of the Permanent Lok Adalat

in the following words-

“It must exercise its power with due care and caution. It must not give an impression

to any of the disputants that it from the very beginning has an adjudicatory role to play

in relation to its jurisdiction without going into the statutory provisions and restrictions

imposed thereunder”.82

In another case, the Supreme Court stated that Permanent Lok Adalat is not a Court

and it is a special tribunal constituted under the Legal Services Authorities Act. Hence

contractual exclusive jurisdiction clause does not bar the Permanent Lok Adalat to hear

the dispute.83

The finality of the Permanent Lok Adalat is still uncertain because of the following

reasons-

i) Section 22E does not expressly prohibit appeal against the Permanent Lok Adalat’s

award; it only declares that finality of the award.

77 Legal Services Authorities Act 1987 s 22C (1). 78 Ibid. 79 Legal Services Authorities Act 1987 s 22C (8). 80 Legal Services Authorities Act 1987 s 22E. 81 https://nalsa.gov.in/content/permanent-lok-Adalat. 82 United India Insurance Co. Ltd v Ajay Sinha and another, (SC) 2008. Available at https://indiankanoon.org/doc/1100992/. 83 Inter Globe Aviation Ltd v. N. Satchidanand, [2011] 7 SCC 463.

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ii) Permanent Lok Adalat can take a decision on merits and that decision can be taken by

majority members of the tribunal. Hence, there may be a possibility that the non-

judicial members can override the decision of the judicial member.

iii) Since the appeal is a remedy available to all the disputants in other forums; hence, the

same cannot be restricted in permanent Lok Adalat award.

iv) There may be possibilities that service providers of public utility services, compelled

the consumers to resolve their dispute through Permanent Lok Adalat since Permanent

Lok Adalat can hear the dispute even one of the party has approached. It indirectly

curtails the right of the consumer to approach consumer forum.84

Supreme Court has looked into these criticisms and upheld the constitutionality of the

Permanent Lok Adalat in the following words,-

“It is quite obvious that the effort of the legislature is to decrease the workload in the

Courts by resorting to alternative disputes resolution. Lok Adalat is a mode of dispute

resolution which has been in vogue for over two decades. Hundreds of thousands of

cases have been settled through this mechanism and is undisputedly a fast means of

the dispensation of justice.

The litigation is brought to a quick end with no further appeals or anguish to the

litigants. The constitution of the permanent Lok Adalats mechanism contemplates the

judicial officer or a retired judicial officer being there along with other persons having

adequate experience in the public utility services.

We do not find any constitutional infirmity in the said legislation. The act ensures that

justice will be available to the litigant speedily and impartially. We do emphasize that

the persons who are appointed on the Permanent Lok Adalats should be a person of

integrity and adequate experience. Appropriate rules, inter alia in this regard, no doubt

will have to be framed, if not already in place. We upheld the validity of the said Act

and hope the Permanent Lok Adalats will be set up at an early date. The Lok Adalats

are enacted to primarily bring about settlement amongst the parties. The parties are

normally required to be present in person and since the impugned provisions are in the

84 'Bar Council of India Vs Union of India on 3 August, 2012' (Indiankanoon.org)

<https://indiankanoon.org/doc/56328920/> accessed 23 August 2019.

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interest of the litigating public, the Lok Adalats shall perform their duties and will

function; even if members of the Bar choose not to appear.”85

Justice K.A. Abdul Gafoor stated that appeal is permissible against the award of

Permanent Lok Adalat since Legal Services Authorities Act does not expressly

prohibit the appeal of Permanent Lok Adalat award.86 However, this interpretation

may not suffice since the Legal Services Authorities amendment Act has stated that

Lok Adalat includes ‘permanent Lok Adalat also”.

Our research team had looked into some of the peculiar cases in which the Permanent

Lok Adalat’s awards had been objected by the Supreme Court. Our team believed that

it is important to analyze these decisions so that we would able to draw an analysis of

the applicability of section 89 CPC referral to PLA.

In United India Insurance Co. Ltd v Ajay Sinha,87 An insurance policy had covered

burglary risk of a Godown. The insured asked the insurer to compensate for his loss

caused by burglary. However, the insurer repudiated the claim on the reason that the

insured might have involved in the burglary. The insured approached the consumer

forum for redressing his claim. However, the consumer forum had refused to hear the

claim since there was a criminal element involved in this case and the dispute was

related to a commercial transaction. Meanwhile, the insured approached permanent

Lok Adalat for resolving his insurance claim dispute. The PLA had passed an award

in favour of the insured. The insurer had challenged this award before the High Court.

The single Bench and Division Bench of the High Court had taken different views.

Later, this case had reached to Supreme Court. The Supreme Court stated that the

Permanent Lok Adalat had passed the award beyond its jurisdiction.

In Inter Globe Aviation Ltd v. N. Satchidananda,88 SC set aside the Permanent Lok

Adalat’s award on non-appreciation of Law. In this case, a passenger was boarded on

85 'S.N Pandey V. Union Of India And Another | Writ Petition (C) No. 543 Of 2002 | Judgment

| Law | Casemine' (Casemine.com)

<https://www.casemine.com/judgement/in/56ea9622607dba382a0794f2> accessed 23 August 2019. 86 Justice K.A. Abdul Gafoor, 'Eastern Book Company - Practical Lawyer' (Ebc-india.com)

<https://www.ebc-india.com/lawyer/articles/2003v5a8.htm> accessed 23 August 2019. 87 'United India Insurance Co.Ltd Vs Ajay Sinha & Anr On 13 May, 2008' (Indiankanoon.org) <https://indiankanoon.org/doc/1100992/> accessed 23 August 2019. 88 Supra note 83.

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Indigo flight. He was travelling from Delhi to Hyderabad. The flight got delayed about

5 hours and got cancelled due to bad weather. Later, the passengers were given the

option of choosing other flight/refund of flight ticket or rescheduled departure of the

same flight. The passenger had chosen to opt rescheduled departure as a result, he had

to wait about 7 hours. Because he suffered discomforts and he was not given food by

the flight crew. Later, he had filed a case before Hyderabad Permanent Lok Adalat for

deficiency in service and asked Damages and compensation from the Indigo Airline

for the delay and other deficiency in services. The Lok Adalat had awarded 1000

compensation to the passenger whereas, the airline had challenged this award before

the High Court. The High Court upheld the Permanent Lok Adalat award.

2.2.5.1 Difference between Lok Adalat and permanent Lok Adalat:

Subject matter Lok Adalat Permanent Lok Adalat

Establishment It is temporary in body It is a permanent institution

Nature of

disputes

It can hear all civil disputes and

other disputes except disputes

on non-compoundable fence.

It can hear only public utility

services related to disputes.

Pecuniary limit It can hear dispute which is

civil and compoundable in

nature irrespective of

pecuniary value of the dispute

It can hear the public utility

services related disputes if

the value of the claim is of

INR 10 Lakh and below.

Decision

making

It can only pass an award on the

basis of settlement made by the

parties.

It can pass an award on the

merits of the dispute if the

conciliation fails.

The finality of

the award

The award passed by the Lok

Adalat is final and binding the

parties. In general, it cannot be

challenged.

The aggrieved party can

challenge the award of

permanent Lok Adalat in

courts.

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CHAPTER III

SALIENT FEATURES OF SECTION 89 OF

CIVIL PROCEDURE CODE

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CHAPTER III

SALIENT FEATURES OF SECTION 89 OF CIVIL PROCEDURE

CODE

“Discourage litigation. Persuade your clients to compromise, whenever you can.

Point out to them the nominal winner is often a real loser; in fees, expenses and

waste of time. As a peace-maker, the lawyer has a superior opportunity of being

a good person.”

Abraham Lincoln89

3.1 History of section 89 of CPC

As explained earlier, the old section 89 of CPC contain the provision for the referral

of the pending dispute to arbitration by courts. However, this section got redundant by

the arbitration Act 1940. After Independence, India has become the signatory of

UNCITRAL model law on arbitration as well as conciliation. Further, the Legal

Services Authorities Act has provided an alternate forum called Lok Adalat for the

resolution of disputes. However, if the parties wish to apt these alternative dispute

resolution mechanism then, they must agree on themselves and refer the same to these

forums. The courts have not given the option of referring pending disputes through

any form of ADR for the resolution unless the parties themselves volunteers.

Malimath Committee recommended that there should be an obligation of the court to

refer the pending dispute after framing of issues for settlement to arbitration,

mediation, judicial settlement or Lok Adalat; if there is no settlement of the dispute

through any one of the ADR mechanisms then the court continues the case.90 The

Parliamentary Standing Committee on Home Affairs in its 49th Report (1998),

89 'Abraham Lincoln's Notes For A Law Lecture' (Abrahamlincolnonline.org)

<http://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm> accessed 23 August

2019. 90 Justice P. V. Reddi, 'Amendment Of Section 89 Of The Code Of Civil Procedure, 1908 And Allied Provisions' (GOVERNMENT OF INDIA, LAW COMMISSION OF INDIA 2011)

<http://lawcommissionofindia.nic.in/reports/report238.pdf> accessed 23 August 2019.\

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accepted the proposal for the referral of pending disputes to arbitration, conciliation,

mediation, and judicial settlement.91&92

Justice R.V. Raveendran and K.L. Manjunath explained the importance of ADR and

mandatory ADR referral of disputes in the following words-

“With the gradual growth in the number of laws and number of litigations, without a

proportionate increase in the number of Courts, a stage has reached where the Courts

are choked with cases. Delay has now virtually become a part of the judicial process.

It has become quite common for civil disputes, in particular litigations involving

partitions, evictions, and specific performance to be fought for several decades,

through a hierarchy of Courts. In commercial litigation, the delay can destroy

businesses. In family disputes, the delay can destroy physical and mental health turning

litigants into nervous wrecks. Long pendency leads to frustration and desperation. The

delay, uncertainty about the final outcome, changes in-laws during the pendency of the

cases, and the expenditure of time, energy and money during the period of litigation,

take their toll on the patience of litigants and erode the confidence in the rule of law

and the justice delivery system. When memories of litigation tend to be unpleasant and

harsh, there is a tendency on the part of the litigant to avoid approaching the Courts,

for relief, but seek remedy outside the legal framework. A landlord who wants

possession from a tenant, knowing that litigation may take years, thinks of engaging

the services of musclemen to evict the tenant. It is not uncommon for moneylenders,

and even Banks, to entrust debt collection to dubious agencies, to coerce and persuade

debtors, not always by lawful means, to recover the amount so due. Though well-aware

that such methods are illegal, costly and risky, more and more persons are tempted to

have recourse to illegal methods, thinking that results are likely to be swift, decisive

and effective, without realizing their pitfalls and the effect on orderly society. In this

background, it became necessary to seriously consider the need to encourage

alternative dispute resolution methods.”93

91 Ibid. 92 85th Report Law’s Delays: Arrears In Courts Parliamentary Standing Committee on Home

Affairs, 2001. 93 'H V Venkatesh Vs Oriental Insurance Company Limited And Ors - Citation 374947 - Court Judgment | Legalcrystal' (Legalcrystal.com) <https://www.legalcrystal.com/case/374947/h-v-

venkatesh-vs-oriental-insurance> accessed 23 August 2019.

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3.2 Mandatory ADR referral of disputes and its usage in various countries:

As discussed, based on the success stories of various countries, our country has

adopted various new ADR mechanisms and mandatory use of ADR under section 89

Of CPC. the modern mandatory ADR referral has started in the US in the 1970s.94

Conciliation project of Himachal Pradesh High Court (disposal of pending cases

through Conciliation and pre-trial conciliation for fresh cases) was based on the

mediation proceedings followed in Canada & Michigan (USA).95 Based on the success

of this project along with the difficulties, the Law Commission of India has made

various recommendations in the 13th report and 77th report and urged all states to

follow the same. Later, this model got expanded and included all other ADR referrals

under section 89 of CPC.

The mandatory mediation under the Commercial Courts Act also derived from the

success stories of various countries. Italy has successfully implemented mandatory

mediation in commercial disputes. Under Italian Law, litigants will not have direct

access to the Italian courts if they cannot prove that they have attended an initial

mediation meeting. Lithuania, Luxembourg, United Kingdom, Ireland also use this

model for a certain category of disputes.96

3.3 Bare provision of section 89 of CPC:

Section 89-Settlement of disputes outside the courts-

(1) Where it appears to the Court that there exist elements of a settlement which may

be acceptable to the parties, the Court shall formulate the terms of settlement and give

them to the parties for their observations and after receiving the observations of the

94 T. B. MAIYAKI and ROBERT UDUAK V, Adr: An Appropriate Substitute To Litigation In The 21st Century. Available at

https://www.academia.edu/34551870/ADR_AN_APPROPRIATE_SUBSTITUTE_TO_LITI

GATION_IN_THE_21_ST_CENTURY. 95 Aditi Bhargava, Conciliation: An Effective Mode Of Alternative Dispute Resolution System.

Available at http://asiapacific.ccinternational.in/wp-content/uploads/2017/04/Aditi-

Bhargava.pdf. 96 Shantha Chellapa and Tara Ollapally, 'A Boost To Effective And Efficient Dispute Resolution In India -Bar & Bench' (Bar & Bench, 2018) <https://barandbench.com/mandatory-

mediation-commercial-courts-act/> accessed 23 August 2019.

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parties, the Court may reformulate the terms of a possible settlement and refer the same

for –

(a) Arbitration;

(b) Conciliation;

(c) Judicial settlement including settlement through Lok Adalat; or

(d) Mediation.

(2). where a dispute has been referred –

(a). for arbitration or conciliation, the provisions of the Arbitration and Conciliation

Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred

for settlement under the provisions of that Act;

(b). to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with

the provisions of sub-section (1) of section 20 of the Legal Services Authority Act,

1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the

dispute so-referred to the Lok Adalat;

(c). for judicial settlement, the Court shall refer the same to a suitable institution or

person and such institution or person shall be deemed to be a Lok Adalat and all the

provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the

dispute were referred to a Lok Adalat under the provisions of that Act;

(d). for mediation, the Court shall effect a compromise between the parties and shall

follow such procedure as may be prescribed.”

Order 10 Rule 1A-Direction of the Court to opt for any one mode of alternative

dispute resolution-After recording the admissions and denials, the Court shall direct

the parties to the suit to opt either mode of settlement outside the Court as specified in

sub-section (1) of section 89. On the option of the parties, the Court shall fix the date

of appearance before such forum or authority as may be opted by the parties.

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Order 10 Rule 1B-Appearance before the conciliatory forum or authority-Where

a suit is referred under rule 1A, the parties shall appear before such forum or authority

for conciliation of the suit.

Order 10 Rule 1C-Appearance before the Court consequent to the failure of

efforts of conciliation-Where a suit is referred under rule 1A and the presiding officer

of conciliation forum or authority is satisfied that it would not be proper in the interest

of justice to proceed with the matter further, then, it shall refer the matter again to the

Court and direct the parties to appear before the Court on the date fixed by it.”

3.4 Lacuna in section 89 of CPC:

Though this section has been inserted for the purpose of reducing the pending cases

and disposal of cases in a quick and efficient manner still, there are uncertainty exists

in the section itself. Section 89 of CPC mandate the judge to refer the pending case to

any form of ADR as he may think fit. However, if we go by the plain meaning of

section 89 then, the trial court should frame settlement arrangement and the referred

forum simply sit and accept the same. Supreme court looked on the drafting errors in

the section and stated that section 89 referral is “Trial Judge's nightmare. Supreme

court also highlighted that section 89 of CPC has the following defects.

a) Role of the judge with regards to the referral of the dispute and recording of settlement.

b) Court’s obligation under section 89 of CPC and mandatory referral of the dispute to

any form of ADR.

c) Deciding appropriate ADR for the resolution of the Dispute.

d) There is no clear-cut definition/explanation about different types of ADRs.97

e) Inclusion of another new form of ADR:

3.4.1 Role of the judge with regards to the referral of the dispute and recording

of settlement:

the literal meaning of section 89, mandates the courts to formulate the terms of

settlement and give to the parties for their observation and refer it to any ADR

institution for the finalization. Which has created some anomalies could arise. If the

97 ‘M/S. Afcons Infra. Ltd. & Anr v M/S Cherian Varkey Constn ... On 26 July, 2010'

(Indiankanoon.org) <https://indiankanoon.org/doc/1875345/> accessed 23 August 2019.

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court formulates the terms of settlement then the purpose of referring the dispute to an

ADR mechanism becomes meaningless as that ADR institution supposed to accept the

terms of settlement given by the court.

In Salem Advocate Bar Association case, Supreme Court has observed that “A doubt

has been expressed in relation to clause (d) of Section 89(2) of the Code on the question

as to finalization of the terms of the compromise. The question is whether the terms of

the compromise are to be finalized by or before the mediator or by or before the Court.

It is evident that all the four alternatives, namely, arbitration, conciliation, judicial

settlement including settlement through the Lok Adalat and mediation are meant to be

the action of persons or institutions outside the Court and not before the Court. Order

10 Rule 1-C speaks of the ‘Conciliation Forum’ referring back the dispute to the Court.

In fact, the Court is not involved in the actual mediation/conciliation. Clause (d) of

Section 89(2) only means that when mediation succeeds and parties agree to the terms

of settlement, the mediator will report to the Court and the Court, after giving notice

and hearing to the parties, ‘effect’ the compromise and pass a decree in accordance

with the terms of settlement accepted by the parties. Further, in this view, there is no

question of the Court, which refers the matter to mediation/conciliation being debarred

from hearing the matter where settlement is not arrived at. The judge who makes the

reference only considers the limited question as to whether there are reasonable

grounds to expect that there will be a settlement, and on that ground, he cannot be

treated to be disqualified to try the suit afterwards if no settlement is arrived at between

the parties.”98

It is also evident that the words “the Court shall formulate the terms of settlement and

give them to the parties for their observations and after receiving the observations of

the parties, the Court may reformulate the terms of a possible settlement” as similar to

conciliator’s powers mentioned under Arbitration and Conciliation Act.99 Even some

of Law Commission of India reports have deployed in similar sentences for explaining

various ADR mechanisms including conciliation and mediation.

98 Salem Advocate Bar Association, T.N. v Union of India [2005] 6 SCC 344. 99Arbitration and Conciliation Act 1996 s 73.

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Justice Raveendran has explained the drafting error of clause 1 of section 89 in the

following words-

“If sub-section (1) of Section 89 is to be literally followed, every Trial Judge before

framing issues, is required to ascertain whether there exist any elements of settlement

which may be acceptable to the parties, formulate the terms of settlement, give them

to parties for observations and then reformulate the terms of a possible settlement

before referring it to arbitration, conciliation, judicial settlement, Lok Adalat or

mediation. There is nothing that is left to be done by the alternative dispute resolution

forum. If all these have to be done by the trial court before referring the parties to

alternative dispute resolution processes, the court itself may as well proceed to record

settlement as nothing more is required to be done, as a Judge cannot do these unless

he acts as a conciliator or mediator and holds detailed discussions and negotiations

running into hours.”

As per Supreme Court’s interpretation, the court shall refer the summary of dispute to

the ADR institution and if there is any settlement got arisen through mediation or

Conciliation then, then the same settlement shall be communicated to the court from

which the referral has been made and the shall pronounce the judgment on basis of

such settlement. Law Commission of India in its 238th report has incorporated the same

suggestion and recommended the following amendment in the section-

“Where it appears to the court, having regard to the nature of the dispute involved in

the suit or another proceeding that the dispute is fit to be settled by one of the non-

adjudicatory alternative dispute resolution processes, namely, conciliation, judicial

settlement, settlement through Lok Adalat or mediation the court shall, preferably

before framing the issues, record its opinion and direct the parties to attempt the

resolution of dispute through one of the said processes which the parties prefer or the

court determines.”

3.4.2 Court’s obligation under section 89 of CPC and mandatory referral of the

dispute to any form of ADR:

Section 89 says …the Court shall formulate the terms of settlement and give them to

the parties for their observations and after receiving the observations of the parties, the

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Court may reformulate the terms of a possible settlement and refer the same for any

ADR. It is unclear whether the ADR referral is mandatory or not.

However, the Supreme court in Salem Advocate Bar Association case observed that-

“As can be seen from Section 89, its first part uses the word ‘shall’ when it stipulates

that the ‘Court shall formulate terms of settlement’. The use of the word ‘may’ in the

latter part of Section 89 only relates to the aspect of reformulating the terms of a

possible settlement. The intention of the legislature behind enacting Section 89 is that

where it appears to the Court that there exists an element of a settlement which may

be acceptable to the parties, they, at the instance of the Court, shall be made to apply

their mind so as to opt for one or the other of the four ADR methods mentioned in the

section and if the parties do not agree, the Court shall refer them to one or the other

of the said modes. Section 89 uses both the words ‘shall’ and ‘may’ whereas Order 10

Rule 1-A uses the word ‘shall’ but on harmonious reading of these provisions it

becomes clear that the use of the word ‘may’ in Section 89 only governs the aspect of

reformulation of the terms of a possible settlement and its reference to one of ADR

methods. There is no conflict. It is evident that what is referred to one of the ADR

modes is the dispute which is summarized in the terms of settlement formulated or

reformulated in terms of Section 89.”100

Justice Raveendran has given an answer to the question of whether the ADR reference

is mandatory or not in Afcons infrastructure case in the following words-

“The court has to form an opinion that a case is one that is capable of being referred to

and settled through the ADR process. Having regard to the tenor of the provisions of

Rule 1A of Order 10 of Code, the civil court should invariably refer cases to ADR

process. Only in certain recognized excluded categories of cases, it may choose not to

refer to an ADR process. Where the case is unsuited for reference to any of the ADR

process, the court will have to briefly record the reasons for not resorting to any of

settlement procedures prescribed under section 89 of the Code. Therefore, having a

hearing after completion of pleadings, to consider recourse to ADR process under

section 89 of the Code, is mandatory. But the actual reference to an ADR process in

all cases is not mandatory. Where the case falls under an excluded category there need

100 Supra note 98.

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not be a reference to the ADR process. In all other case referred to the ADR process is

a must.”

Based on the above observation of the Supreme Court, the obligation of the court under

section 89 of CPC is to find whether the dispute is capable to settle through any form

of ADR or not and if the court found that the dispute is not possible to resolve through

ADR then, it no required to refer the dispute to an ADR mechanism. In other words,

the duty of the court to find out the suitability of ADR resolution of the particular

dispute and not the mandatory referral of the dispute.

3.4.3 Deciding and referring appropriate ADR for the resolution of the Dispute:

ADR mechanisms are broadly classified into two major types. They are

1. Adjudicatory ADR mechanisms

2. Non-Adjudicatory ADR mechanisms

In adjudicatory ADR mechanism, the decision of the dispute shall be decided on merits

whereas, in non-adjudicatory ADR mechanism, the dispute shall be resolved through

compromise or cooperative resolution. Arbitration, DAB is considered as adjudicatory

ADR mechanisms whereas, Negotiation, Mediation, Lok Adalat excluding permanent

Lok Adalat are considered as non-adjudicatory ADR mechanisms.

Since, the current section 89 contains the referral of disputes to adjudicatory

(Arbitration) as well as non-adjudicatory (Conciliation, Mediation, Lok Adalat and

Judicial settlement) ADR mechanisms the court must be very cautious while choosing

suitable ADR mechanism for the resolution of the particular dispute. Because, once

the dispute has been referred to any adjudicatory ADR mechanism then, it cannot be

heard by the court.

Supreme Court held that Section 89 and rule 1A of order 10 has mandated the court to

explain the various ADR options to the parties for the resolution of the disputes. If the

parties themselves have chosen any one of the ADR mechanism under section 89 then,

the court shall refer the dispute to that particular ADR mechanism only. However, if

the parties have not agreed or there is no consensus on the choice of ADR then, the

court can refer the dispute to any non-adjudicatory form of ADR mechanism.

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However, in case of a referral of the dispute to Conciliation then, the court can refer

the dispute upon the consent of the parties.101

It is pertinent to note that Law Commission of India has differed the view taken by the

Supreme Court in Afcons infrastructure case and given the discretion to the court to

decide whether a particular dispute can be referred to Conciliation along with other

non-adjudicatory ADR mechanisms. However, our research team would like to sustain

the view taken by the Supreme Court in Afcons infrastructure case (emphasis added).

3.4.4 There is no clear-cut definition/explanation about different types of ADRs

and their referral process:

Section 89 contains the following five types of ADR options,-

1) Arbitration

2) Conciliation

3) Mediation

4) Judicial settlement

5) Lok Adalat

However, if we read the entire section 89 of CPC then, there are confusions about the

definition of a particular ADR and referral procedure of such ADR. As explained in

chapter II, each ADR mechanism has its own approach for resolving the dispute.

Hence, the straight jacket formula for ADR referral cannot be possible under section

89.

3.4.4.1 Arbitration:

If the dispute is been referred under section 89 then, the entire arbitration process will

be governed by the Arbitration and Conciliation Act.102 The case won't come back to

the referred court. The apex court cautioned the courts on the mandatory referral of the

dispute to arbitration without the consent of the parties in the following words-

“It should not also be overlooked that even though Section 89 mandates courts to refer

pending suits to any of the several alternative dispute resolution processes mentioned

101 Supra note 97. 102 Civil Procedure Code 1908 s 89(2) (a).

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therein, there cannot be a reference to arbitration even under Section 89 CPC, unless

there is mutual consent of all parties, for such reference.”103

The Supreme Court in Afcons Infrastructure case held that the court cannot refer the

dispute to arbitration without the consent of the parties. Section 89 presupposes that

there is no existence of arbitration agreement between the parties for the referral of the

dispute to arbitration. Hence, under section 89, the parties can agree to refer their

pending dispute to arbitration. The agreement may be in the form of a joint affidavit

or joint application or the record of agreement in the order sheet by the court and signed

by the parties. Upon the agreement, the court can refer the dispute to arbitration. The

Supreme Court further observed that if there is a pre-dispute arbitration agreement

between the parties then, section 8 and 11 of arbitration and Conciliation Act might

help the parties to go for arbitration and there is no requirement of section 89

referral.104

3.4.4.2 Conciliation:

Section 89 states that if the dispute is been referred to Conciliation then, the provisions

relating to conciliation shall be governed by the Arbitration and Conciliation Act.105

Supreme Court held that If the court decides to refer the dispute to Conciliation then,

the consent of the parties is necessary.106 Law Commission has differed this view. And

stated that if the court decides to refer the dispute to conciliation then, consent of all

parties is not necessary.107 However, our research team believes that in case of

conciliation, the parties must agree on a number of conciliators and sharing of the

expenditure of the conciliation process; Hence, mandatory conciliation should not be

permitted under section 89 of CPC.

3.4.4.3 Mediation:

Section 89 of CPC states that if the court decides to refer the disputes to mediation

then, the consent of the parties is not necessary. Supreme Court held that section 89

contains mixed up of definitions on “Mediation” and Judicial Settlement” due to

103 Jagdish Chander v Ramesh Chander [2007] (5) SCC 719. 104 Supra note 97. 105 Supra note 102. 106 Supra note 97. 107 Supra note 90.

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typographical error. The apex court further held that if clause (c) and (d) of subsection

(2) of section 89 are interchanged then, these clauses give perfect meaning.108

Based on the above explanation if the court decides to refer the dispute to mediation

then, the Court shall refer the same to a suitable institution or person and such

institution or person shall be deemed to be a Lok Adalat and all the provisions of the

Legal Services Authority Act, 1987 shall apply as if the dispute was referred to a Lok

Adalat under the provisions of that Act.”

However, our research team would like to suggest that the mediation procedure should

not be combined with Lok Adalat proceedings. In Lok Adalat, the presiding officer

might be a judicial officer whereas, in mediation, any person can mediate the dispute.

If we go back to the Indian mediation history, it is evident that Lok Adalat comes much

before the mediation. Further, the Legal Services Authorities Act does not contain any

special chapter on mediation. In Salem Advocate Bar Association II, the apex court

approved the model mediation rules and asked the High Courts to frame such rules for

their respective jurisdiction. Hence, we propose the following clause for mediation

referral-

“If the court decides to refer the dispute to mediation then, it may refer to a person or

an institution including court-annexed mediation and procedure of such mediation

shall be governed by mediation rules of such institution or respective High Court

mediation rules.”

Law Commission of India in its 238th report on the amendment of section 89 of CPC

has recommended a similar clause.109

The Supreme Court stated that in complex cases, mediation is the better option than

Lok Adalat or Judicial settlement.110 In this juncture, we may look at the recently

amended commercial courts Act and its mandatory mediation on the pre-initiation of

the dispute. Mandatory mediation is the precondition for the initiation of the dispute.

108 Supra note 97. 109 '238Th Report On Amendment Of Section 89 Of The Code Of Civil Procedure,’

(Indiankanoon.org)

<https://indiankanoon.org/docfragment/174517104/?big=3&formInput=judicial%20settlement> accessed 23 August 2019. 110 Supra note 97.

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3.4.4.3.1 Role of court-annexed mediation in section 89 referral:

The mediation manual of India highlighted the advantages of referring the disputes to

court-annexed mediation centres in the following words-

“The judges, lawyers, and litigants become participants therein, thereby giving them a

feeling that negotiated settlement is achieved by all the three actors in the justice

delivery system. When a judge refers a case to the court-annexed mediation service,

keeping overall supervision on the process, no one feels that the system abandons the

case. The Judge refers the case to a mediator within the system. The same lawyers who

appear in a case retain their briefs and continue to represent their clients before the

mediators within the same setup. The litigants are given an opportunity to play their

own participatory role in the resolution of disputes. This also creates public acceptance

for the process at the same time it tests the court system, which has acquired public

confidence because of integrity and impartiality, retains its control and provides

additional service. In court-annexed mediation, the court is the central institution for

the resolution of disputes. Where ADR procedures are overseen by the court, at least

in those cases which are referred through courts, the effort of dispensing justice can

become well-coordinated.”111

Supreme Court has explained the confidentiality of the mediation proceedings and

content of the mediation report by the mediator to the referred court in the following

words-

“Mediation proceedings are totally confidential proceeding. This is unlike proceedings

in Court which are conducted openly in the public gaze. If the mediation succeeds, by

both the parties to the Court without mentioning what transpired during the mediation

proceedings. If the mediation is unsuccessful, then the mediator should only write one

sentence in his report and send it to the Court stating that the 'Mediation has been

unsuccessful'. Beyond that, the mediator should not write anything which was

discussed, proposed or done during the mediation proceedings. This is because in

mediation, very often, offers, counteroffers, and proposals are made by the parties but

111'Mediation Training Manual Of India' (Sci.gov.in) <https://sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf> accessed 23

August 2019.

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until and unless the parties reach to an agreement signed by them, it will not amount

to any concluded contract. If the happenings in the mediation proceedings are

disclosed, it will destroy the confidentiality of the mediation process.”112

Our research team would like to suggest there must be a regular audit of court-annexed

Mediation Centers with regards to the number of cases referred and resolved in a

particular centre. Based on this information dispute centric mediation process can be

developed. Further, there must be concrete information about the number of mediation

conducted by the MCPC mediation trainees.

3.4.4.4 Lok Adalat

If the court decides to refer the dispute to Lok Adalat then, the court can refer the same

to Lok Adalat constituted under Legal Services Authorities Act and section 20 and

other allied provisions of Legal Services Authorities shall govern the Lok Adalat

proceedings.113 The Supreme Court held that noncomplex disputes and the disputes

which can be resolved through the mere application of legal provisions are well suited

for Lok Adalat referral.114&115

However, our research team has some concern that the term Lok Adalat mentioned

under section 89 should not include Permanent Lok Adalat constituted under the Legal

Services Authorities Act. Because Permanent Lok Adalat can decide the dispute on

merit; thus, the non-adjudicatory nature of the Lok Adalat become adjudicatory.

As discussed in various cases in Chapter II, our research team has observed that Lok

Adalat award should not be given finality status as on when it got passed by Lok Adalat

especially the dispute has been referred under section 89 by a court. The referred court

must be given an opportunity to look at the award and find out whether there is some

inadvertent mistakes or obvious errors or not and if there is an error then, it shall be

rectified by the Lok Adalat. our research team would like to suggest the incorporation

112 'Moti Ram(D) Tr.Lrs.& Anr Vs Ashok Kumar & Anr On 7 December, 2010'

(Indiankanoon.org) <https://indiankanoon.org/doc/79225691/> accessed 23 August 2019. 113 Supra note 102. 114 Supra note 97. 115 Supra note 97.

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of the following recommendation of the Law Commission of India in section 89 of

CPC.

“On receipt of a copy of the settlement agreement or the award of Lok Adalat, the

court, if it finds any inadvertent mistakes or obvious errors, it shall draw the attention

of the conciliator or the Lok Adalat who shall take necessary steps to rectify the

agreement or award suitably with the consent of parties.”116

In some cases, after the settlement agreement , the same disputes are referred to Lok

Adalat and got converted into Lok Adalat award. Our research team would like to

suggest that Lok Adalat should not be used for converting existing settlement

agreement into decree; Lok Adalat must act as a dispute resolution institution and

ensure that the dispute is actually heard and disposed of by the Lok Adalat. If the party

wish to convert their existing out of court settlement agreement into decree then, they

may invoke Order XXIII, Rule 3 of CPC.117

3.4.4.5 Judicial settlement:

The most debated issue under section 89 is the referral of the dispute to “Judicial

Settlement”. Justice Khan said that judicial settlement if used judiciously and tactfully,

can do wonders and become most effective of all the five ADRs referred to in Section

89 of CPC.118 Still, it is uncertain how “judicial settlement” is to be conducted. As

highlighted earlier, section 89 actually mix up “Judicial Settlement” with “Lok

Adalat”.

In Afcons Infrastructure Limited v. Cherian Varkey Construction Company Private

Limited,119 the Supreme Court stated that ‘judicial settlement is a term in vogue in the

USA referring to a settlement of a civil case with the help of a judge who is not

assigned to adjudicate upon the dispute’. the definitions of 'judicial settlement and

'mediation' in clauses (c) and (d) of Section 89(2) shall have to be interchanged to

116 Supra note 90. 117 Naeemullah Azeem, 'Compromise Decree: A Detailed Overview' (Legalserviceindia.com)

<http://www.legalserviceindia.com/legal/article-311-compromise-decree-a-detailed-

overview.html> accessed 23 August 2019. 118

Justice S.U. Khan, 'Judicial Settlement Under Section 89 C.P.C. A Neglected Aspect' (Ijtr.nic.in) <http://www.ijtr.nic.in/Article_chairman%20S.89.pdf> accessed 23 August 2019. 119 Supra note 97.

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correct the draftsman's error. Clauses (c) and (d) of Section 89(2) of the Code will read

as under when the two terms are interchanged:

(d) for judicial settlement, the court shall effect a compromise between the parties and

shall follow such procedure as may be prescribed.

Justice Khan observed that “Judicial Settlement” can be done by the judge who is

hearing the same case which is the exact opposite view of the Supreme Court in Afcons

Infrastructure case. He has explained how judicial settlement to be conducted in the

following words-

“If the judge finds that the learned counsel for both the parties, and the parties if

present, are showing some interest in settlement, however faint or strong it may be, the

proposed terms as come in the mind of the judge are reduced in writing on the order

sheet and the parties are given two or three days time to consider the same. The council

must be either supplied a free copy of the said order sheet or be permitted to copy the

order at once. The judges have to develop the skill of persuasion by practice.”120

Our research team has believed that the concept of judicial settlement as prescribed by

the Supreme Court in Afcons Infrastructure was not at all thought by the Law

Commission of India and Union government. Even the Supreme Court had not given

the same view on “Judicial Settlement” in Salem Advocate Bar Association case I

and II. After Afcons Infrastructure case, The Law Commission of India has

incorporated the definition given by Justice Raveendran.121 Our research team would

like to combine the explanation given by Justice Khan and Justice Raveendran and

come with the following amendment in section 89.

If the court decides to refer the dispute to a judicial settlement then, it can be referred

to any judge including presiding judge of that dispute. If the presiding judge decides

to resolve the dispute through judicial settlement then, he may resolve the dispute

through judicial settlement upon the express consent of the parties. However, he must

ensure that the compromise process shall be tried before framing of the issues.

120

Supra note 118. 121 Supra note 90.

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Our research team would like to request the union government as well as respective

High Courts to frame suitable rules for the proper implementation of the judicial

settlement including the judicial settlement process and procedure and execution of

settlement outcome of the referred dispute.

3.4.5 Inclusion of another new form of ADR:

Our research team has come across some new forms of ADR which can be very well

incorporated under section 89 ADR referral and which could resolve the dispute as an

effective and efficient manner. These ADR mechanisms are DAB, DRB, Early Neutral

Evaluation, mini-trial and ODR.

3.4.5.1 Dispute Adjudication Board and Dispute Review Board:

DAB and DRB are widely used ADR mechanisms in construction disputes. Standing

panel consist of 3 members or 5 members will be constituted for resolving the dispute.

The only difference between the DAB and DRB is that Division of the DAB will bind

the parties whereas, DRB’s decision will not bind the parties. The members of the

panel must have expertise on the subject matter of the dispute.

In the USA, DAB and DRB are used in tunnel projects, railways, Highways, building

and process contracts, involving a variety of employers, including American

Telephone & Telegraph, the Hawaiian Department of Transportation and the

International Monetary Fund. Some institutions have included DAB and DRB model

clause in their standard form of the construction contract. for example, FIDIC has

included DAB and DRB as a primary dispute resolution mechanism in its various

model standard form contracts. American Arbitration Association and the

International Chamber of Commerce have their own Dispute Board rules. Part 2 of UK

Construction Act has compelled the parties of certain specified construction contracts

must resolve their disputes through mandatory adjudication.122 The Chartered Institute

of Arbitrators has framed Disputes Board rules for providing DAB and DRB services to the

disputants.123

122 James Jenkins, International Construction Arbitration Law (2nd edn, Kluwer Law

International). 123 'Ciarb - Rules' (Ciarb.org) <https://www.ciarb.org/resources/rules/> accessed 23 August

2019.

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3.4.5.2 Early neutral evaluation

Robert A. Goodin stated that “Early neutral evaluation is a technique used in American

litigation to provide early focus to complex commercial litigation, and based on that

focus, to provide a basis for sensible case management or offer a resolution of the

entire case, in the very early stages.”124

A person (advocate/retired judge) who has legal knowledge shall be appointed as a

neutral evaluator. The neutral evaluator will assess the dispute along with the strengths

and weakness of the parties objectively and give his evaluation report to the parties.

This report will act as a reality check and encourage the parties to go for a settlement.125

In Bawa Masala case,126 the Supreme Court had asked the parties to use ENA for the

resolution of their dispute.

3.4.5.3 Ministerial/Executive tribunal:

Panel consist of Executives of disputing parties along with a neutral person (retired

judge or senior lawyer) will hear the dispute. The disputing parties will make their

arguments before the panel. The neutral person who will act as the chairman will

ensure the fair play of the hearings. After the detailed hearings, the panel will act as a

conciliator/mediator and try to resolve the dispute through settlement.

3.4.5.4 Expert determination:

In expert determination, the dispute will be referred to one or more experts to decide

the issue. Unless otherwise agreed by the parties, the decision of the expert will bind

the parties. The parties must agree for the expert determination referral. IPR disputes

are resolved through expert determination.127

124 'Bawa Masala Co. Vs Bawa Masala Co. Pvt. Ltd. And Anr. On 6 August, 2007'

(Indiankanoon.org) <https://indiankanoon.org/doc/1858612/> accessed 23 August 2019. 125 Supra note 94. 126 Supra note 124. 127 'What Is Expert Determination?' (Wipo.int) <https://www.wipo.int/amc/en/expert-

determination/what-is-exp.html> accessed 23 August 2019.

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3.4.5.5 ODR:

ODR means Online Dispute Resolution. There are some special dispute resolution

mechanisms are available in an online platform. Automated negotiation is one such

mechanism in which the disputing parties simply settle their claims through the

bidding process. Apart from this, these days traditional ADR mechanisms such as

arbitration, mediation, conciliation are conducted through virtual hearings.

3.5 Proposed amendment in section 89 of CPC

Our research team would like to suggest the following amendment under section 89 of

CPC ADR referral-

1) Where it appears to the court, having regard to the nature of the dispute involved in

the suit or another proceeding that the dispute is fit to be settled by one of the ADR

mechanism then, the court shall, preferably before framing the issues, record its

opinion and direct the parties to attempt the resolution of dispute through one of the

said ADR processes which the parties prefer or the court determines.

2) If the court decides or the parties prefer the reference of dispute to any non-

adjudicatory alternative dispute resolution processes, including conciliation,

mediation, judicial settlement, settlement through Lok Adalat, DRB, Early Neutral

Evaluation, mini-trial and ODR then, the court shall refer the same to such ADR

mechanisms with the consent of the parties or its own motion. However, the court

cannot refer the dispute to Conciliation, mini-trial, Early Neutral Evaluation, DRB

without the written consent of the parties.

If the court decides or the parties prefer the reference of dispute to Any of the

adjudicatory alternative dispute resolution processes Including Arbitration, Permanent

Lok Adalat, Dispute adjudicatory Board and Expert Determination then, the court

shall, preferably before framing the issues, record its opinion and direct the parties to

attempt the resolution of dispute through one of the said adjudicatory process upon the


If the court refers the dispute to any of the non-adjudicatory dispute resolution

mechanism then, settlement outcome of the dispute should be filed before the court

and the court must review settlement agreement or award. The court, if it finds any

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inadvertent mistakes or obvious errors, it shall draw the attention of the conciliator or

the Lok Adalat or the parties as the case may be who shall take necessary steps to

rectify the agreement or award suitably with the consent of parties.

3.6 Comprehensive road map for the role of the presiding judge under section 89 of CPC:

Based on the analysis of section 89 of CPC along with Supreme Court directions under

Afcons Infrastructure case, our research team has finalized the following checklist

for the presiding judge who is supposed to implement section 89 of CPC

1) Analyze the facts and issues involved in a particular case.

2) Analyze the suitability of ADR referral of the case.

3) If the case is fit for ADR referral then, the court may refer it to any non-adjudicatory

or adjudicatory ADR process.

4) If the case is not fit for ADR referral then, the court shall record the reason for the

same and continue its hearing.

5) If the court decides to refer the case any adjudicatory ADR process then, it must ensure

that all parties in the disputes have given their written consent.

6) If the court decides to refer the dispute to any non-adjudicatory dispute resolution

mechanisms then, it can refer the dispute any such mechanism with or without the

consent of the parties. However, the court should not refer the dispute to Conciliation

or Private Mediation or any other non-adjudicatory mechanism which will increase the

cost of the parties and which is a purely private forum in nature.

7) The duration of the referral of the dispute adjudicatory mechanism shall not be more

than 3 months and it may extend another 2 months if there are any special

circumstances.

8) The decision or an award or an outcome given by the dispute adjudicatory forum must

be reviewed by the court which has referred that dispute under section 89 and converts

the same award into the decree.

Our research team further believed that the following clause should be included under

order XX (Judgment and Decree) under CPC for ensuring the effective implementation

of section 89 of CPC by the judges.

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While writing the judgment, the judge shall state that whether the particular dispute

has been considered for ADR referral under section 89 or not and If it has been referred

to any form of ADR then, the outcome of the same must be mentioned in the judgment.

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CHAPTER IV

ANALYSIS OF THE IMPLEMENTATION OF

SECTION 89 OF

CPC IN THE STATE OF GUJARAT

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4.1 Judicial system and ADR institutions in the state of Gujarat

As per the Gujarat High Court’s statistics, Gujarat state has established 32 District

level courts out of 33 Revenue districts and 247 taluk Level courts out of 248 revenue

taluks. There are 235 appellate courts, 323 Sr. Division Courts, 390 Jr. Division

Courts, 37 Family Courts, 14 Industrial Courts, 19 Labour Courts (SD) and 26 Labour

Courts (JD).128 As per the data gave by National Judicial Data Grid (NJDG), As on

6/6/2019, there are 1228109 Civil cases and 1658657 Criminal cases are pending in

the state of Gujarat.129 As on April 2019, there are about 1532 cases pending in

commercial courts of Gujarat.130 The High Court has given the below pendency of

Civil Cases as on 31/12/2018.

Table 1: Court Wise Institution, Disposal, and Pendency of Civil & Criminal

Cases for the Period: 01/01/2018 to 31/12/2018 (excluding High Court)131

Sr.

No.

Name of the

court

Pending as

on

01/01/2018

Institution

(01/01/2018

to

31/12/2018)

Disposal

(01/01/2018

to

31/12/2018)

Pending as

on

31/12/2018

1 Small Cause

Court,

Ahmedabad

11788 3203 5194 9797

2 City Civil Court,

Ahmedabad

27835 4624 10200 22259

3 SSC MOFUSSIL 6988 2053 2586 6455

4 Family Courts 10112 8729 9162 9679

128(Gujarathighcourt.nic.in, 2018)

<http://gujarathighcourt.nic.in/hccms/sites/default/files/annualreport/Annual_Report_2018_Bookmarked.pdf> accessed 23 August 2019. 129 'Welcome To NJDG - National Judicial Data Grid' (Njdg.ecourts.gov.in)

<https://njdg.ecourts.gov.in/njdgnew/?p=main/index&state_code=24~17> accessed 23 August 2019. 130 'Pendency, Institution, Disposal Of Cases Of Commercial Court For The Month April-2019'

(Gujarathighcourt.nic.in, 2019)

<http://www.gujarathighcourt.nic.in/hccms/sites/default/files/commercialidp/Commercial_Court_montlhy_april2019.pdf> accessed 23 August 2019. 131 Supra note 128.

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5 Subordinate

Courts

212704 58748 84341 187111

6 Appellate Courts 185058 76333 115213 146178

Source: GSLSA

Gujarat state is the pioneer of Lok Adalat, Mediation and Legal Aid services. From

1972 onwards Gujarat state is providing legal aid services to the needy people. The

SLSA has been constituted in 1998 under the Legal Services Authorities Act. As stated

earlier, the first Lok Adalat held in Gujarat in 1982 and the first private meditation

centre has been established in the state of Gujarat in 2003.

Presently, the Gujarat state has 12 private ADR centres and 13 courts annexed

mediation centres. Gujarat SALSA and other legal services authorities are conducting

Lok Adalat at regular intervals. SLSA also provides mediation training to the

advocates and judges as per MCPC modules. For the better implementation of section

89 mediation referral, The High Court of Gujarat has framed Civil Procedure

Mediation (Gujarat) Draft Rules, 2007. Gujarat High Court has provided a model

mediation referral order for the courts.

Table:2. Number of Lok Adalats Held and Cases Settled by State Legal Services

Authorities (other than National Lok Adalats) (April 2017 To March 2018)

Gujarat India

No. of Lok Adalats Held 6254 109695

Pre-Litigation

Cases

Taken up 56404 1953448

Disposed of 3324 984512

Pending Cases

in Courts

Taken up 36171 1731245


Total Taken up 92575 3684693


Source: NLSA

The table given above shows the number of Lok Adalat held and cases settled by state legal

services authorities other than national LokAdalats since last one year. As it can be seen from

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the table that, overall Lok Adalat’ss taken up cases are 3684693 in India and out of this

92575 cases are taken up in Gujarat Lok Adalats. There are total 109695 Lok Adalat

held in across the country and out of these 6254 Lok Adalats are held in Gujarat.

The overall taken up Pre-litigation cases by the Lok Adalats are 1953448 in India and

out of these cases 56404 are taken up by the Lok Adalats in Gujarat. On the other hand,

Lok Adalats have disposed 984512 pre-litigation cases across the country out of these

disposals, 3324 pre-litigation cases got disposed of by the Lok Adalats held in Gujarat.

During this period, Lok Adalats have taken up 1731245 pending cases across the

country out of these cases, 36171 cases have taken up by the Lok Adalats in Gujarat.

However, Lok Adalats have disposed of 944170 pending cases and out of these

disposals, 15750 pending cases got disposed of in the Lok Adalats conducted in the

state of Gujarat.

Table 3: The Number of Lok Adalats Held By State Legal Services Authorities

Under the Legal Services Authorities Act 1987 And Cases Settled Since

Inception (As On 30.06.2017)

India Gujarat

No of Lok Adalat held 17,46,031 1,76,196

Total No. of Cases Settle 9,72,81,478 79,55,142

No. of MACT cases settled 25,43,801 2,24,549

Source: NLSA

The above table represents the statement about a number of Lok Adalats conducted by State

Legal Services Authorities under the Legal Services Authorities Act 1987 and number of cases

got settled through Lok Adalats conducted by SALSAs from their Inception and till 30.06.2017.

during this period, SLSAs have conducted 17,46,031 Lok Adalats in India and 9,72,81,478

(including 25,43,801 Motor Accident claims) cases got resolved through these Lok

Adalats. During this period, Gujarat State Legal Services Authority alone has

conducted 79,55,142 Lok Adalats in Gujarat state and 1,76,196 cases (including

2,24,549 Motor Accident Claims) cases got resolved in these Lok Adalats.

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Our research team has collected the data from Gujarat state Legal Services Authority

on the number of mediations conducted by various ADR centres across the state of

Gujarat and number of Lok Adalats conducted by State Legal Services Authority and

other Legal services authorities in the state of Gujarat.

Table 4: Number of Lok Adalats conducted and number of disposed of in the state of

Gujarat from 1982 to 2018

Year Number of

Lok Adalat held

Number of

Cases dealt with

Number of

Cases disposed of

March, 1982 TO 1997 1470 251388 198140

1998 TO 2009 93678 6269115 5037808

2010 9478 649388 428110

2011 9741 552727 357535

2012 9736 289316 168432

2013 10068 396023 212432

2014 11839 569529 374241

2015 13120 433207 172363

2016 15620 654396 222667

2017 11731 1070206 218154

2018 10815 1037633 191415

Total 197296 12172928 7581297

Source: GSLSA

The above table discusses the Number of Lok Adalats conducted and the number of

disposed of in the state of Gujarat from 1982 to 2018. As, it can be seen from the table

that, 197296 number of Lok Adalat conducted which dealt with 12172928 number of

cases and 7581297 cases disposed of since 1982 to 2018. If anyone sees from the year

wise from 2010 to 2018 the number of Lok Adalat is increased continuously except in

the year of 2017 and 2018. The similar type of data is also in shows in the cases dealt

with and cases disposed of. For instance, in terms of cases dealt with, in the year of

2010, the number was 649388 which increased up to 1037633.

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Our research team has analyzed the Lok Adalat's disposal of cases from 2010 to 2018

in the state of Gujarat from the GSLSA data. There is 102148 total number of Lok

Adalat conducted in Gujrat from 2010 to 2018. There are 5652425 cases have taken

up for hearing and there are 2345349 got disposed of and there are 3307076 cases

unsettled.

Figure:1. Number of Lok Adalats conducted and number of disposed of in the state of

Gujarat from 2010 to 2018

The figure depicts the number of Lok Adalats conducted and the number of disposed

and Unsettled in the state of Gujarat from 2010 to 2018. It can be observed from the

figure that, the average of unsettled cases are 41% till the year 2018. It is important to

see the number of cases dealt with is decreasing because of the number of Lok Adalat

conducted got decreased.

Table: 5. Permanent Lok Adalats (Established u/s 22-B of LSA Act) For the

period w.e.f. April 2017 to March 2018

2010 2011 2012 2013 2014 2015 2016 2017 2018

Number of Lok Adalat held 9478 9741 9736 10068 11839 13120 15620 11731 10815

Number of Cases dealt with 649388 552727 289316 396023 569529 433207 65439610702061037633

Number of Cases disposed of 428110 357535 168432 212432 374241 172363 222667 218154 191415

Number of Unsettled 221278 195192 120884 183591 195288 260844 431729 852052 846218

0

200000

400000

600000

800000

1000000

1200000

SLSA Gujarat India

PLAs Functioning 4 289

Sitting During the months 5 24842

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Source: NLSA

The table represents Permanent Lok Adalats (Established u/s 22B of Act) from 2017 to 2018.

The total 289 PLAs are functioning in India and out of this total 4 in Gujarat. The PLAS across

the country had sat during the months were 24842 and among these 5 sittings in Gujarat.

Further, there were 51330 cases pending as on the beginning of the months and out of

this 358 from Gujarat. The cases received during the months were 140318 in India and

out of this 884 from Gujarat. Among this, the cases settled during the months were

124459 and out of this 439 from Gujarat.

Table 6: Details of The Matters Referred to All ADR/Mediation Centers in the

State of Gujarat from 2012 to 2018

Year Pending at

the earlier

Referred Settled Non-

Starters

Unsettled Pending

2012 536 1394 388 139 768 635

2013 635 1396 484 82 836 629

2014 629 1659 337 154 1318 479

2015 479 2078 466 265 1328 498

2016 498 5986 807 661 3491 1525

2017 1525 3897 630 611 3138 1043

2018 1043 3982 563 635 3077 750

Total 5345 20392 3675 2547 13956 559

Source: GSLSA

The table depicts the details of matters referred to all ADR/mediation centres in the

state. As it can be seen that, the total pending cases at the earlier 5345 and settled 3675

cases. The total unsettled cases are 13956 since 2012 to 2018. However, in the year of

Cases pending as on the beginning of the months 358 51330

Cases received during the months 884 140318

Cases settled during the months 439 124459

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2012, 768 cases were unsettled which increased up to 3077 in the year of 2018.

Similarly, pending cases, it increased up to 635 to 750 from 2012 to 2018 respectively.

Though, in the year of 2016 and 2017, it was high 1525 case and 1043 respectively.

It is important to note that the Gujarat SLSA has highlighted that all the referrals for

Mediation are made under Draft Mediation Rules, 2015 and according to orders passed

by Mediation Conciliation Project Committee, New Delhi as well as Hon'ble

Mediation Monitoring Committee, High Court of Gujarat. Therefore, the table given

below shows the cases settled through Mediation for the last two years.

Table: 7. Cases Settled Through Mediation from April 2017 to March 2018

Gujarat India

ADR Centers 12 408

Existing at the beginning of the month 12 387

Established During the Month 0 1

Total Functional 25 556

Under Construction 0 87

Existing Mediation Centers other than ADR Centers 13 577

Judicial Officers Mediators 14 4588

Lawyers Mediators 394 8079

Any other Mediators 2 2948

Judicial Officers Mediators Deployed 14 2297

Lawyers Mediators Deployed 394 4875

Any other Mediators Deployed 2 815

Cases Settled through Mediation 655 107587

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Source: NLSA

The above table represents the detail of mediation conducted and functioning of

mediation institutions in India and the state of Gujarat in the year 2017-18. The total

number of ADR centres in India has 408 and out of this 12 from Gujarat. Similarly,

the existing at the beginning of the month, it was 387 in India and out of this 12 from

Gujarat only. On the other side, 556 is the total functional in India and out of this 25

from Gujarat. Apart from this, the existing mediation centres other than ADR centres

are 577 in India and out of this 13 from Gujarat and in these the judicial officers’

mediators are 4588 in India and out of this 14 from Gujarat. There are also 8079

lawyers Mediators in India and among these mediators 394 from Gujarat. However,

107587 the cases have settled through mediation in India and out of this 655 from

Gujarat.

We have enclosed the Gujarat SLSA statistics pertaining to Lok Adalats held in the

state of Gujarat, the functioning of various ADR and court-annexed mediation centres

and mediators’ performances as Annexure-IV).

4.2 Mindset of the stakeholders on the implementation of section 89 in the state

of Gujarat

Any policies, acts or norms have to be implemented at the end-users whether it is

related to the production process or any other programme. Similarly, in 1999 the



arbitration or mediation or Lok Adalat. this section enforced in the year of 2002. As

stated earlier, in spite of high resistance, this section brought in to enforcement. Hence,

the successful implementation of this section depends on the stakeholder’s positive

behaviour.

The main focus of this research project is to find out how the stakeholders acting upon

section 89 of CPC ADR referral. Our research team has identified that the

implementation of this provision depends on their key players such as Litigants,

Advocates, and Judges. Unless the litigants have shown their willingness, the dispute

cannot be settled through ADR. The judges can refer the dispute to Lok Adalat or

Mediation as per section 89; however, the referral becomes ceremonial unless the

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litigants regularly utilize this referral option. Advocates have a very pivotal role in the

implementation of this section. They are the one supposed to explain the options of

ADR and the significance of ADR to the litigants and encourage the litigants to take

part in the ADR process. Finally, the official duty of the implementation of this section

lies on the shoulders of the judges who are hearing the civil dispute at the very first

instance. the judges must ensure that the litigants are aware of ADR options and the

outcome of the non-adjudicatory mechanism is in accordance with law and benefit to

the litigants.

4.2.1 Data Analysis and Interpretation of Litigants

The Litigant is one of the main actors in the role of end-users where the amendment

or act has been implemented at the ground level. Thus, it is important to analyze the

litigants who are facing the problem of pending cases. In addition to this, as per one of

the objectives of this study is to examine the success rate of settlement of disputes such

as matrimonial/property and others. Settlements are only based on litigant’s behaviour

and their mutual understanding among each other. Therefore, 100 samples have been

collected from the five different districts of Gujarat which has been interpreted in the

following sections.

4.2.1.1 Broader Analysis of the Respondents

This section includes the region-wise distribution of respondents, gender, education,

and occupation based on the five different zone or districts.

Table: 8. Region-wise distribution of the Sample

District

Frequency Percent

Valid

Percent

Cumulative

Percent

Valid

Mehsana 20 20.0 20.0 20.0

Rajkot 20 20.0 20.0 40.0

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Surat 20 20.0 20.0 60.0

Vadodara 20 20.0 20.0 80.0

Ahmedabad 20 20.0 20.0 100.0

Total 100 100.0 100.0

The above table (no.1.) indicates that the total of 100 samples has been collected from

the five districts (i.e. Mehsana, Rajkot, Surat, Vadodara, and Ahmedabad). These

districts based on the five different zones and from each zone 20 samples have been

taken to achieve the objective. The respondents are having experience in Munsif court

or subordinate court or district court in the state of Gujarat. However, it is very

important to know that, what the education of these respondents is.

4.2.1.2 Respondent’s Education across the districts

Education is o ne of the important factors to analyze the litigants because settlement

of the dispute is generally based on education. The person who is highly literate have

the chance to understand the issues or problems in a better manner than others, they

can understand the mechanism of solving the problems. Hence, the educational

background has been categorized into four parts (i.e. primary, secondary, graduate,

and postgraduate) The figure is given illustrate the same.

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Figure: 2. Educational Qualification

As can be seen from the figure no.1 that, the highest education of the respondent is

graduate which is 74% and 14% of respondents have completed secondary education.

There are only 5 and 7% of respondents have primary and postgraduate respectively.

However, based on district-wise education of the respondents the above scenario is not

there.

Figure: 3. Education-wise Respondents across the districts

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Education-wise Respondents across the districts

The figure depicts the educational qualification of litigants and it can be observed the

greater number of litigants are graduate across all the districts. But, only three districts

such as Surat, Vadodara, and Ahmedabad litigants have a postgraduate and above

degree. Similarly, there are very a smaller number of litigants is primary education.

Hence, maybe it can be said, the number of disputes solves through ADR will be high

comparison from the district.

4.2.1.3 Occupation of Respondent

The occupation of the litigants is another factor which plays a major role in the

analysis. It may be assumed that the person who is working in the unorganized sector

may bend willingly to file a case due to financial issues. However, the respondent’s

occupation is shown detail in figure below:

Figure: 4. Occupation of the Respondent

The figure above shows the occupation of respondents and it reflects that total 2% of

the respondent belongs to the unorganized sector such as farmer, student, driver, and

housewife, etc. The larger portion (75%) of the respondent is belonging to the

organized sector such as business, banking job, practising law, etc. In addition to this,

district wise analysis of occupation of the litigants shows that as an average 15

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respondent from each district belongs to the organized sector and the rest of them are

unorganized sector. In the Mehasana district, there is no big difference between the

organized and unorganized sector. Out of 20, the 11 litigants are belonging to the

organized sector and the rest of them belongs to the unorganized sector. It is

interesting to see that from the unorganized sector what is ratio among them because

the categories of the unorganized respondent may have a different set of disputes based

on their occupation.

Figure: 5. Occupation of Respondent in depth

As it is stated above that, the person belongs from the unorganized sector dispute is

less compared to the organized sector. It can be seen that out of the 25% unorganized

sector respondent, 5% case belongs to housewife the i.e. divorce, dowry, and other

related issues and 4% cases with student-related drunk and drive and accident. Further,

from the organized sector businessperson (31% out of 75) and teacher (8%) and job

(9) are highly involved in the dispute. Hence based on the occupation it is necessary

to know the type of dispute among the respondents. The next section deals with the

same.

4.2.1.4 Nature of dispute

The nature of the dispute has been broadly categories into three parts namely,

matrimonial, property and others. The other types of disputes include motor vehicle

claims, dishonour cheques, and other civil and commercial claims. The result shows

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that 29% of the dispute related to property and 25% belongs to matrimonial and the

rest of the 46% belongs to others.

Figure: 6. Nature of dispute involved

Table: 9. Nature of dispute involved across the district

Count

Nature of dispute involved

Total Matrimonial Property Others

District Mehsana 5 6 9 20

Rajkot 5 9 6 20

Surat 3 3 14 20

Vadodara 5 5 10 20

Ahmedabad 7 6 7 20

Totalcccc 25 29 46 100

As it can be observed from the table that, as an average of 9 out of 20 litigants from

each district belongs to other dispute categories. Further, an average of 5 out of 20

litigant’s disputes related to matrimonial from each of the district and the rest of them

as an average of 6 out of 20 litigant’s disputes are related to property. Among the five

districts, Ahmedabad district is morally equal in all the type of dispute comparison

from the other districts. It may be the reason behind that, this district is located near

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the capital of Gujarat and most the person is highly educated which they are not willing

to file a case or other issue.

4.2.1.5 Time duration of the Cases

The time duration of the cases has been separated into three parts i.e. 0-2 years, 2-5

years and more than five years. As it can be seen from the figure given below the

duration of 57% of the cases are 0-2 years and 28% of the cases are 2-5 years and rest

of the per cent cases are more than 5 years. Therefore, it is necessary to look at which

type of dispute are taking a longer duration for the disposal and what is the reason that

in the recent 2 years the number of disputes has been increased.

Figure:7. The time duration of the Cases

4.2.1.6 Nature of Dispute with time duration

As, the findings pointed out that, 57% of the dispute evolved recently during the period

of 0-2 years. It is important to check out which type of cases has been filed in this

period of time. Therefore, the below shows the nature of the dispute with time.

Figure: 8. Nature of Dispute with time duration

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As it can be observed from the figure that, the matrimonial dispute is highly filled in

recent 2 years the number is 23 out of 57 cases and other cases such as accident, drive

and student-related case are also high with 30 out of 57. On the other hand, in the

period of 2-5 years 11 out of 28 cases related to property and 15 from others beside

this, there are also 2 cases which belong to the matrimonial categories. It needs

attention in the period of more than five years, there is 14 out of 15 cases are related

to the property which means the property-related dispute takes so much time to solve

through the legal process.

4.2.1.7 Nature of Dispute based on the District with time duration

It is important to check which type of dispute highly belongs to the particular district

in the recent time. The table given below represents the same.

Table: 10. Nature of Dispute based on the District with time duration

Duration * Nature of dispute involved * District Cross tabulation

Count

District

Nature of dispute involved

Total matrimonial property others

Mehsana Duration 0 - 2 years 5 2 5 12

2 - 5 years 0 3 4 7

more than 5

years

0 1 0 1

Total 5 6 9 20

Rajkot Duration 0 - 2 years 5 0 4 9

2 - 5 years 0 4 2 6

more than 5

years

0 5 0 5

Total 5 9 6 20

Surat Duration 0 - 2 years 3 0 8 11

2 - 5 years 0 0 6 6

more than 5

years

0 3 0 3

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Total 3 3 14 20

Vadodar

a

Duration 0 - 2 years 4 0 8 12

2 - 5 years 1 3 2 6

more than 5

years

0 2 0 2

Total 5 5 10 20

Ahmedab

ad

Duration 0 - 2 years 6 2 5 13

2 - 5 years 1 1 1 3

more than 5

years

0 3 1 4

Total 7 6 7 20

Total Duration 0 - 2 years 23 4 30 57

2 - 5 years 2 11 15 28

more than 5

years

0 14 1 15

Total 25 29 46 100

In the Mehsana district in the period of 0-2 years, out of 12, there are 5 disputes related

to matrimonial and other cases each. Similarly, in the period of 2-5 years, 3 out of 7

disputes related to property and 5 disputes related to others. Further, in a period of

more than five years, there is only one case is related to property. In addition to this,

From the Rajkot district in the period of 0-2 years, there are 5 disputes out of 9 related

to matrimonial and 4 disputes belonging to another dispute. There is no case related to

property in this time duration. Moreover, from the Surat district in the period of 0-2

years, there are 3 disputes out of 11 relate to matrimonial and 8 disputes are belonging

to another dispute. There is no case related to property in this time duration. However,

as overall there is a high number of disputes are related to the property takes a long

time to solve through the legal process.

4.2.1.8 Analysis Related to ADR awareness:

In this section, the issues have been taken to analysis with a different perspective. The

issues like the reason behind filed the case, satisfaction with the court system, type of

ADR and knowledge about the ADR system, etc.

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4.2.1.7.1 Reason for filing the Case

Figure: 9. The reason behind the filing of the Case

As can be seen from the figure, 61% of the respondents think that there is no remedy

is better than this option and 14% of the respondents said because of inducement from

others. Though 19% of respondents give other reasons and only 6% says to seek

revenge. It is interesting to check the district wise response to file the case. The below

section deal with the same.

Table: 11. District wise cross tabulation of filed Cases

Why you have filed your case? * District Cross tabulation

Count

District

Total Mehsana Rajkot Surat Vadodara Ahmedabad

Why you

have filed

your case?

No remedy

is better

than this

9 12 14 14 12 61

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To seek

revenge

2 0 2 1 1 6

Inducement

from others

5 3 3 2 1 14

Other

reasons

4 5 1 3 6 19

Total 20 20 20 20 20 100

As can be seen from the table that, 14 out of 61 litigants of the respondent from each

of the district and Surat and Vadodara give a reason that there is no remedy is better

than this. Similarly, 12 litigants out of 61 each from the Rajkot and Ahmedabad and

rest of 9 litigants from the Mehsana. Further, 5 respondents from the Mehsana give

the reason that they file the case because of inducement from others.

Table: 12. Education-wise cross tabulation of filed Cases

Education Qualification * Why you have filed your case? Cross tabulation

Why you have filed your case?

Total

No

remedy

is better

than this

To seek

revenge

Inducement

from others

Other

reasons

Primary 2 1 0 2 5

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Education

Qualification

Secondary 6 3 4 1 14

Graduate 48 2 10 14 74

Postgraduate

and above

5 0 0 2 7

Total 61 6 14 19 100

The table above depicts the education-wise cross tabulation of filed the Cases.

Although, the number of filed cases depends on the education qualification because it

assumed that the educated person follow the proper process to solve the dispute. In the

table, it can be observed that, total 74 disputes have been filed by the graduated

litigants and among them there are 48 respondents which belong to graduation believe

that there is no remedy is better than this and 14% says other reasons followed by 10

Inducement from others and there are two-person filed the case because they want to

take revenge.

4.2.1.7.2 Statistics related to the opinion of the litigants about the Current Court System

As we know, because of the long paperwork and another process it takes time to get

justice in the case. Therefore, the system has emerged and our research team tries to

understand the human mind related to the current system. It is thus, the question framed

that, whether litigants are satisfied with the current court system or not. The table

represents that, 55% of the litigants are not satisfied with the current court system and

45% of the litigants are satisfied. Therefore, it is necessary to check the district wise

satisfaction.

Table: 13. The opinion of the litigants upon the satisfaction of the current court

system.

Litigants satisfaction on the current court system

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Frequency Percent

Valid

Percent

Cumulative

Percent

Valid No 55 55.0 55.0 55.0

Yes 45 45.0 45.0 100.0

Total 100 100.0 100.0

Figure: 10. District * litigants satisfaction on the current court system

The figure given above shows the district wise litigant satisfaction and as it can be seen

that, Mehsana and Surat district litigants have the highest dissatisfaction (16 and 15

out of 20 respondents respectively). But on the other side, rest of the districts i.e.

Rajkot, Vadodara, and Ahmedabad litigants said they are highly satisfied with the

current court system (12, 13 and 11 out of 20 respondents respectively). It may be a

reason because these districts have a more developed comparison with Mehsana and

Surat and this development reflects in the court system. However, there are other

various reasons to not satisfied with the court system.

4.2.1.7.3 Reason for non-satisfaction:

Though, there are various reasons that, litigants are not satisfied with the current court

system. The dissatisfaction reasons have been categorized into five parts namely,

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delay, lengthy hearings, cost, time and all of the above. The figure given below

represents the same.

Figure: 11. Reason for non-satisfaction

As it can be seen in the figure, 54% of litigants, the larger portion of the litigants said

all of the above-given reasons followed by 20% said because of lengthy hearings and

more than 14% said because of delay. The other reasons are negligible. However, it

depends on the litigants where they belong to the particular district. Therefore, the next

section shows the result of district wise results.

Table: 14. District wise* reasons for dissatisfaction on the current court system

District * reasons for dissatisfaction on the current court system Cross

tabulation

If no, which is the primary reason makes you feel

dissatisfaction?

Total Delay

Lengthy

hearings Cost Time

All of the

above

District Mehsana 3 6 1 1 5 16

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Rajkot 1 2 0 0 5 8

Surat 2 1 2 0 10 15

Vadodara 1 1 1 0 4 7

Ahmedabad 1 1 0 1 6 9

Total 8 11 4 2 30 55

As the table above shows that, the highest number of litigants from all districts said

because of all reason (i.e. Delay, Lengthy Hearings, Cost, Time and all of the above)

they are not satisfied. Though in the district of Mehsana, out of 16 litigants 6 are given

a reason because of lengthy hearings but from the other district’s litigants strongly

support the whole reasons. Some of the districts such as Rajkot, Vadodara, and

Ahmedabad they are negatable dissatisfaction with the court system.

4.2.1.7.4 Awareness about the ADR System

It is important to understand that, whether litigants are knowing about the ADR system

or not. Therefore, this section emphasized on ADR system.

4.2.1.7.4.1 Willingness to resolve their dispute through ADR

The question has been framed to understand whether litigants also interested to adopt

this system or not. The figure represents the same.

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Figure: 12. Willingness to resolve their dispute through ADR System

As it can be observed that, 76% of the litigants are interested to adopt ADR system to

solve their dispute and rest of the 24% not interested to solve. Therefore, there is a

need to understand district wise response about the ADR system.

Figure: 13. District wise Willingness to resolve their dispute through ADR System

As it can be seen from the above figure that, as an average 15 litigants from each

district said they are willing to resolve the issue through ADR system and rest of 5

litigants form each district said no, they don’t want to solve through ADR system. It

may be the reason that nobody has been suggested about this system. Hence, the next

section discusses whether anybody has been suggested about this system or not. The

figure given below represents the same.

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4.2.1.7.4.2 Suggested about ADR system or not

As a part of the implementation of the act, it is the responsibility of another stakeholder

to make aware of the system and suggest to the litigants.

Figure: 14. District wise whether anybody has been suggested about this ADR

system or not

As the figure depicts about whether anybody has been suggested about the ADR

system or not before filling the case. The result shows that 65% of the litigants got

their suggestion about the ADR system before filling the case and the rest of the 35%

not get any suggestion about the ADR system. If, we see from the district wise 16

litigants out of 20 from the Ahmedabad said they got their suggestion followed by 14

from the Vadodara and rest of the district as an average 10 litigants from each district

got their suggestion. It is interesting to find out in spite of lawyer and judge the 35%

of litigants did not get any suggestion about this system. Therefore, the next question

asked about the judge whether he/she told about to resolve the dispute through ADR

system.

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Figure: 15. Whether the Judge was asked to resolve the dispute through ADR or not

As it is observed from the figure that, 60% of the litigants said yes the judge has been

asked about the ADR system but 40 % of the total litigants said no, the judge has not

been asked about the system which cannot be ignored because it is also responsibility

of the judge to make aware about the ADR system to litigants. It is important to know

about the district wise result. Hence, the next table given below represents the same.

Table: 15 Districts: * whether the judge has asked you to resolve your dispute

through ADR or not

District * Where the judge has asked you to resolve your dispute through ADR or

not?

Whether the judge has asked you to

resolve your dispute through ADR or

not?

Total No Yes

District Mehsana 7 13 20

Rajkot 8 12 20

Surat 12 8 20

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Vadodara 8 12 20

Ahmedabad 5 15 20

Total 40 60 100

The above table shows about district wise response of the litigants related to whether

the judge has asked you to resolve your dispute through ADR or not. The number

suggested that out of 20 as an average 12 litigants from each district of the litigants

said yes, the judge has asked about the ADR system to resolve the issue and similarly,

as an average 8 litigants out of 20 of the litigants from each district has said no.

Although, it is interesting to mention that, 12 litigants out of 20 from the Surat, said

no the judge has not been asked about the ADR system to solve the dispute. It is thus,

it can be said that there is a need for proper implementation of the system.

4.2.1.7.3 Form of ADR

Broadly, there are four forms of ADR system to resolve the dispute such as Arbitration,

Mediation, Conciliation, and Lok Adalat.

Figure: 16. Form of ADR

As it can be observed from the figure that, the highest number of suggestions is given

for Arbitration (38.33%) followed by Mediation, Conciliation and Lok Adalat is 31,

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23, 6% respectively. These systems are depending on the type of case from the district

wise response is shown in the table given below:

Table: 16. District wise* forms of ADR

District:* form of ADR Cross tabulation

If yes, which form of ADR?

Total Arbitration Mediation Conciliation

Lok

Adalat

District Mehsana 1 6 3 3 13

Rajkot 7 2 3 0 12

Surat 4 4 0 0 8

Vadodara 5 4 2 1 12

Ahmedabad 6 3 6 0 15

Total 23 19 14 4 60

The table shows that out of 13 the 6 litigants got suggestion about the Mediation form

and rest of the medium is 3, 3, and 1 through Conciliation, Lok Adalat and Arbitration

respectively. Similarly, if we see from the Rajkot district out of 12, 7 respondents got

suggestion about the Arbitration and mediation and conciliation is 2 and 3 respectively.

But, in the Ahmedabad district out of 15 litigants, 6 litigants got suggestion about

Arbitration and Conciliation equally and rest of the 3 litigants got suggestion about

Mediation. Although, these differences among the district because of the type of case

and development of the districts as well as aware of the ADR system.

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4.2.1.7.4 Knowledge about the ADR

There is a need to understand whether the litigants know about the ADR system or not.

Therefore, the question asked from the litigants that do you know what ADR is. The

result is shown in the figure given below:

Figure: 17. Do you know what ADR is?

Based on the figure given above, it could be said that total 62% of the litigant from all

the district said they are aware of the ADR system but almost 38% of the litigant is not

aware of the ADR. There could be some reasons like lack of awareness, not suggested

by lawyers and judges. Though, if we see from the district wise as an average 13

litigants out of 20 from each district are knowing about the ADR and 8 out of 20 as an

average litigant are not knowing about the ADR. On the other hand, responses from

the Rajkot get equally 10 litigants aware as well as unaware of ADR.

4.2.1.7.5 Knowledge of Lok Adalat:

Lok Adalat is a type of ADR system and in one of the questions related to ADR, the

response about Lok Adalat is less. Therefore, there is a need to know whether litigants

are knowing about the Lok Adalat. The table given below depicts that, out of 100 total

80 respondent of the litigants are knowing about this and the rest of the 20 are not

knowing. On the other side, an average of 16 respondents from each district is knowing

about the Lok Adalat. Among these districts, the litigants from Vadodara and Rajkot

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are highly well known 19 and 18 respectively and from the rest of the districts, litigants

don’t have any understanding about the system.

Table:17 Knowledge of Lok Adalat

District * knowledge on Lok Adalat Cross tabulation

Do you know what Lok

Adalat is?

Total No Yes


Rajkot 2 18 20

Surat 6 14 20

Vadodara 1 19 20

Ahmedabad 5 15 20

Total 20 80 100

4.2.1.7.6 Knowledge of Mediation

Mediation is also a type of ADR system. The question has been framed to understand

the awareness about the mediation. As can be seen, 63 out of 100 litigants were

knowing about the mediation and 37 respondents did not know about this. If we

analysis the district wise as an average 12 out of 20 respondents were knowing about

the system and rest of them which means as an average 8 respondents did not know

about this. Though, if see separately Surat district respondents have less number (9 out

of 20) of knowing about the Mediation. Similarly, out of 20, the highest number of the

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litigants (14 each) is knowing from the Mehsana and Vadodara followed by 13 each

from Rajkot and Ahmedabad.

Table: 18. Knowledge of mediation

District * Knowledge on mediation Cross tabulation

Do you know what

mediation is?

Total No Yes


Rajkot 7 13 20

Surat 11 9 20

Vadodara 6 14 20

Ahmedabad 7 13 20

Total 37 63 100

4.2.1.7.7 Knowledge of arbitration:

As we know arbitration is another type of ADR system. Therefore, the question asked

from the litigants that, whether they are knowing about arbitration or not? The result

states that out of 100 61 litigants were knowing about the system and the rest of the 39

litigants were not aware of the system. The highest number of litigants are knowing

about this system from the Mehsana District (16 out of 20 litigants). On the other side,

from the Surat district, there is less number of respondents knowing about the

Arbitration (9 out of 20) and 11 respondents were not knowing about the system.

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Table: 19. Knowledge of Arbitration

District * Knowledge on Arbitration Cross tabulation

Do you know what

arbitration is?

Total No Yes


Rajkot 10 10 20

Surat 11 9 20

Vadodara 6 14 20

Ahmedabad 8 12 20

Total 39 61 100

4.2.1.7.8 Knowledge of conciliation:

The conciliation is a method of ADR system to solve their dispute. The table given

below shows that, district wise knowing about the conciliation. As it can be seen that,

out of 100 the total 56 litigants said they were knowing about the conciliation method

of ADR and rest of the 44 respondents did not know about this method to solve the

dispute. However, the district-wise the highest number of litigants are knowing about

the system is from Vadodara (17 out of 20) followed by Mehsana Rajkot 15 and 10

respectively. The least number of knowing litigants from Surat and Ahmedabad 5 and

9 respectively.

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Table: 20. District wise* knowledge of conciliation

District * knowledge of conciliation Cross tabulation

Do you know what

conciliation?

Total No Yes


Rajkot 10 10 20

Surat 15 5 20

Vadodara 3 17 20

Ahmedabad 11 9 20

Total 44 56 100

4.2.2 Data Interpretation and Analysis of Advocates

The Advocates are the intermediary between the Litigants and Judges who play their

role in the implementation. Broadly, it assumes that they suggest to their litigants to

resolve the dispute through ADR system. Thus, it is important to analyze Advocates

who are facing the problem of pending cases. In addition to this, as per one of the

objectives of this study is to analyze the referral process of the civil courts under

Section 89 of Civil Procedure code and find out the mindset of the advocates related

to this system because somehow settlements are also based on them. Therefore, 100

samples have been collected from the five different districts of Gujrat which has been

interpreted in the following sections.

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4.2.2.1 Basic Analysis of the Respondents

This section includes region-wise distribution of respondents based on their

experience, a number of disputes handled and time duration across the five different

zone or districts and among this experience is a most important factor to effect on civil

procedure code. Hence, the analyses are the following:

Table: 21. Region-wise distribution of the Sample

District

Frequency Percent

Valid

Percent

Cumulative

Percent

Valid Mehsana 20 20.0 20.0 20.0

Rajkot 20 20.0 20.0 40.0

Surat 20 20.0 20.0 60.0

Vadodara 20 20.0 20.0 80.0

Ahmedabad 20 20.0 20.0 100.0

Total 100 100.0 100.0

The above table (no.20.) indicates that the total of 100 samples has been collected from

the five districts (i.e. Mehsana, Rajkot, Surat, Vadodara, and Ahmedabad). These

districts based on the five different zones and from each zone 20 samples have been

taken to achieve the objectives. The respondents are having experience in Munsif court

or subordinate court or district court in the state of Gujarat. However, it is very

important to know that, how many are them are highly experienced by these

respondents.

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4.2.2.2 Experience of Advocates

The experience of advocates is a matter for the case because it helps to understand the

legal process and how they handle to dispute. Therefore, the question has been asked

form the advocates that how much they have practice experienced. The experienced

has been categorized into eight class intervals.

Figure: 22. Practising Experience of Advocates

The figure above represents the experience of advocates based on their experience. As

it can be seen that, advocates are highly experienced and among them, 26% of the

respondents have 10- 15 years of experience in practice followed by 17, 18 and 20%

have 15-20, 5-10 and 0-5 years of practice experience. Besides this, there are also some

of the respondents have 20-25 years experienced. In addition to this, it also important

to check the district wise experience of practice.

Table: 22. District wise Professional experience of Advocates

District * Professional experience of Advocates Cross tabulation

Professional experience Total

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0-5

years

5-10

years

10-15

years

15-20

years

20-25

years

25-30

years

30-35

years

35-40

years

District Mehsana 7 3 7 3 0 0 0 0 20

Rajkot 3 3 6 4 3 1 0 0 20

Surat 2 4 7 2 1 3 0 1 20

Vadodara 3 3 3 5 1 4 1 0 20

Ahmedabad 5 5 3 3 1 2 1 0 20

Total 20 18 26 17 6 10 2 1 100

As it can be observed from the table that, the most experienced advocates belong to

the Surat, Vadodara and Ahmedabad district who have 25 to 30 years experienced and

there are some advocates who have more than 30 years’ experience. In comparison to

another district, Mehsana and Rajkot’s advocates have also 15-20 years’ experience.

Though some of the advocates have 0-5 years’ experience and among them, Mehsana’s

advocate's number is high (07 advocates) followed by Ahmedabad (05), Vadodara and

Rajkot (03 each) and 2 from Surat. However, based on these experiences, it is

important to see what type of or nature of dispute they handled so far. The figure below

gives details of the same.

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Figure: 19. Nature of Dispute handled by Advocates

As it can be seen from the figure above that, the highest number of disputes is related

to civil cases (53 percent) followed by civil and criminal cases (23 percent) across all

the districts. There are other cases also such as property (8 percent) and civil and family

cases (3 percent), matrimonial cases (4 percent), property and civil and constitutional

law-related issues are 1 percent. However, it is significant to check these cases based

on the district wise which means which districts have a high dispute. The table given

below shows the same.

4.2.2.3 District wise Nature of Dispute handled by advocates

The table given below shows the nature of dispute based on district. As can be seen

from the table that, from the district of Rajkot and Surat, the civil court is high

comparison from other districts and other nature of the dispute. Here it can be noticed

that the Matrimonial type of case is only Mehsana no other than this district. Similarly,

the property-related case is also maximum (7 out of 8) belongs to Mehsana district, no

other than this. On the other side, there are some cases such as civil and criminal is

almost equally in all the district.

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Table: 23. District wise Nature of Dispute handled by advocates

District * Nature of dispute handled by advocates Cross tabulation

Nature of dispute handled

To

tal

Arbitr

ation

Ci

vil

Civil

&

Consti

tunal

law

Civil

&

Corp

orate

Civil

&

Cri

min

al

Civ

il

&

Fa

mil

y

Civil

&

Prop

erty

Contr

actual

Disput

e

Cri

min

al

Matri

monial

Prop

erty

Mehsa

na

0 9 0 0 0 0 0 0 0 4 7 20

Rajkot 1 13 0 0 4 1 0 0 0 0 1 20

Surat 0 13 1 1 5 0 0 0 0 0 0 20

Vadod

ara

0 9 0 0 4 2 1 0 4 0 0 20

Ahme

dabad

0 9 0 0 10 0 0 1 0 0 0 20

Total 1 53 1 1 23 3 1 1 4 4 8 10

0

4.2.2.4 Time duration of the Cases

However, the nature of dispute can be seen from the time duration also because based

on the time taking of cases it can be understood the importance or need of the ADR

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system. Therefore, the duration of time of the cases has been separated into three parts

i.e. 0-2 years, 2-5 years and more than five years. As it can be seen from the figure

given below 46 % of the case time is 0-2 years and 38 % of the case is 2-5 years and

rest of the 16 % case takes more than 5 years. Hence, there is need to look nature of

dispute belongs to long years and what is the reason that in the recent 2 years the

number of disputes has been increased.

Figure: 20. The time duration of the Cases

4.2.2.5 Nature of Dispute with time duration

Based on the table, it can be seen that the civil dispute is highly filed in the period of

0 - 2 years the number mmmmmmmis 24 out of 46 cases and other cases such as civil

and criminal are also high with 11 out of 46. On the other hand, in the period of 2-5

years 22 out of 38 cases related to civil followed by 10 civil and criminal beside this,

there are also 3 cases which belong to the matrimonial categories. It needs attention in

the period of more than five years, there is 7 out of 16 cases are related to civil and 4

cases related to property and it also in other time duration which means the property-

related dispute takes so much time to solve through the legal process.

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Table: 24. Nature of dispute with time duration

Nature of dispute with Duration Cross tabulation

Duration

Total 0 - 2 years 2 - 5 years

more than 5

years

Nature of dispute

handled

Arbitration 1 0 0 1

Civil 24 22 7 53

Civil &

Constitutional law

1 0 0 1

Civil & Corporate 0 0 1 1

Civil & Criminal 11 10 2 23

Civil & Family 3 0 0 3

Civil & Property 0 0 1 1

Contractual

Dispute

1 0 0 1

Criminal 2 2 0 4

Matrimonial 0 3 1 4

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Property 3 1 4 8

Total 46 38 16 100

4.2.2.6 Nature of Dispute based on the District with time duration

It is important to check the type of dispute highly belongs to the particular district in

recent time. The table given below represents the same.

Table: 25. Nature of Dispute based on the District with time duration

Nature of dispute handled * Duration * District Cross tabulation

District

Duration

Total

0 - 2

years

2 - 5

years

more

than 5

years

Mehsana Nature of

dispute

handled

Civil 5 2 2 9

Matrimonial 0 3 1 4

Property 3 0 4 7

Total 8 5 7 20

mmmRajkot Nature of

dispute

handled

Arbitration 1 0 0 1

Civil 6 6 1 13

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Property 0 1 0 1

Total 9 9 2 20

Surat Nature of

dispute

handled

Civil 4 6 3 13

Civil

&Constitunal

law

1 0 0 1

Civil &

Corporate

0 0 1 1


Total 8 8 4 20

Vadodara Nature of

dispute

handled

Civil 5 4 0 9




Criminal 2 2 0 4

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Total 12 7 1 20

Ahmedabad Nature of

dispute

handled

Civil 4 4 1 9


Contractual

Dispute

1 0 0 1

Total 9 9 2 20

Total Nature of

dispute

handled

Arbitration 1 0 0 1

Civil 24 22 7 53

Civil

&Constitunal

law

1 0 0 1

Civil &

Corporate

0 0 1 1




Contractual

Dispute

1 0 0 1

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Criminal 2 2 0 4

Matrimonial 0 3 1 4

Property 3 1 4 8

Total 46 38 16 100

In the Mehsana district, only three types of cases (i.e. civil, matrimonial and property)

have been observed in all the time duration. In the period of 0-2 years, out of 8, there

are 5 disputes related to civil and 3 cases related to property. Similarly, in the period

of 2-5 years, 2 out of 5 disputes are related to civil and 3 disputes are related to

matrimonial. Further, in the period of more than five years, there are 4 case is related

to property out of 7, one case is matrimonial and 2 cases are civil. In addition to this,

From the Rajkot district there are five types of cases seen (Arbitration, Civil, Civil,

and Criminal, Civil and Family and Property) in the period of 0-2 years there are 6

disputes out of 9 is related to civil and 1 is belongs to Arbitration, Civil and Criminal,

Civil and Family each. There is no case related to property in this time duration.

Similarly, in the period of 2-5 years there are 6 disputes out of 9 is related to civil and

2 is belongs to Civil and Criminal and 1 case is related to property.

Moreover, from the Surat district, there are four types of cases found such civil, civil

and criminal, civil and constitutional law and civil and corporate. In the period of 0-2

years, there are 4 disputes of out of 8 are related to civil and 3 belongs to the civil and

criminal. Similarly, from the 2-5 duration of time, there are 6 cases out of 8 is related

to the civil and 2 belongs to the civil and criminal. On the other side, in the time

duration of more than 5 years, there are 3 cases out of 4 are related to civil and rest of

one case is related to civil and corporate. Further, in the Vadodara district, there are

five types of cases (i.e. Civil, Civil & Criminal, Civil & Family, Civil & Property,

Criminal). Among these cases, during the period of 0-2 years, 5 cases are civil out of

12 and 3 cases are Civil & Criminal and 2 cases are Civil & Family and rest of the 2

cases are criminal. During the period of 2-5 years, 4 cases are civil out of 7 and 2 cases

are criminal and the rest of 1 case is civil and criminal. Besides this, in the duration of

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more than five years, there is only one case related to civil and property. Further, in

Ahmedabad district, there are three types of dispute such as Civil, Civil & Criminal,

Contractual Dispute. Among these cases, in the duration of 0-2 years, 4 cases each out

of 9 belong to Civil, Civil & Criminal and rest one is a contractual dispute. Similarly,

in the duration of 2-5 years, 4 and 5 dispute out of 9 are belongs to Civil, Civil &

Criminal respectively.

4.2.2.7 Advocates perspective on the ADR System:

Broadly, this section analyzes the different angle of the ADR system from the mindset

of Advocates. The perspective like the reason behind filed the case, satisfaction with

the court system, knowledge about the ADR system and any suggestion to improve the

system.

4.2.2.6.1 Causes to bring the Case in Court

Figure: 21 Causes for bringing their dispute in Court by the litigants

As it can be seen from the figure above that, 68% of the respondent thinks that there

is no remedy is better than this option and 13% of the respondents said because of

seeking the revenge. Though 14% of respondents give other reasons and only 5% says

that inducement from others. It is interesting to check the district wise response to file

the case. The below section deal with the same.

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Table: 26. Causes for bringing their dispute in Court by the litigants

District * Table: 24. Causes for bringing their dispute in Court by the litigants Cross

tabulation

Why litigants are bringing their disputes before the

court?

Total

No remedy is

better than

this

To seek

revenge

Inducement

from others

Other

reasons


Rajkot 12 4 1 3 20

Surat 19 1 0 0 20

Vadodara 12 3 1 4 20

Ahmedaba

d

18 2 0 0 20

Total 68 13 5 14 100

Based on the above table, it can be observed that 68 respondents said because of no

remedy is better than litigation across all the districts. Out of 68, there are 19 and 18

respondents belong to Surat and Ahmedabad respectively is the highest response from

others district. Although, it cannot be ignored to Rajkot and Vadodara because there

are 12 respondents from each of the district give a reason because no remedy is better

than this. Similarly, there is a total of 13 respondents said that, because of to seek

revenge across all the district. Out of 13, 4 respondents from Rajkot, 3 each from

Mehsana and Vadodara. There are also 2 respondents from Ahmedabad and 1 from

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Surat. Though, there are other options which are highly response (total 14) across all

the district. Out of 14, fifty per cent of response (7 response) only from the Mehsana

followed by 4 from Vadodara and 3 from Rajkot district.

4.2.2.6.2 Satisfaction with Current Court System

The question has been framed to understand humankind related to the current system

because of the lengthy process to get justice in the case and the various hearing

conducted by the judicial system. Therefore, the question framed that, whether

advocates are satisfied with the current court system or not. Based on the figure, it can

be said that out of 100 advocates 59% of the respondents are not satisfied with the

current court system and 41% are satisfied. Therefore, it is necessary to check the

district wise satisfaction.

Figure: 22. satisfaction with Current Court System

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Figure: 23. District wise Satisfaction with Current Court System

The figure given above shows the district wise advocates satisfaction and

dissatisfaction. As it can be seen that, across all the districts there is highly

dissatisfaction with the current court system. Among all the district, Vadodara is highly

dissatisfaction (14 out 59) and Mehsana, Surat, and Ahmedabad district advocates

have dissatisfaction 13 each of the districts out of 59. But on the other side, rest of the

districts i.e. Rajkot advocates said they are highly satisfied with the current court

system with 13 out of 41 respondents. However, it is important to check with the

experience of advocates because more experience gives a more accurate answer.

Table: 27. Based on the Experience satisfaction with Current Court System

across the districts

Based on the Experience satisfaction with Current Court System District *

Professional experience Cross tabulation

Professional experience

District

Total Mehsana Rajkot Surat Vadodara Ahmedabad

No 4 1 0 1 3 9

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0-5

years

Are you

satisfied with

the current

court system?

Yes 3 2 2 2 2 11

Total 7 3 2 3 5 20

5-10

years

Are you

satisfied with

the current

court system?

No 3 1 4 2 2 12

Yes 0 2 m 0 1 3 6

Total 3 3 4 3 5 18

10-15

years

Are you

satisfied with

the current

court system?

No 5 1 4 3 2 15

Yes 2 5 3 0 1 11

Total 7 6 7 3 3 26

15-20

years

Are you

satisfied with

the current

court system?

No 1 2 1 5 3 12

Yes 2 2 1 0 0 5

Total 3 4 2 5 3 17

No 2 1 1 1 5

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20-25

years

Are you

satisfied with

the current

court system?

Yes

1 0 0 0 1

Total 3 1 1 1 6

25-30

years

Are you

satisfied with

the current

court system?

No 0 2 2 0 4

Yes

1 1 2 2 6

Total 1 3 4 2 10

30-35

years

Are you

satisfied with

the current

court system?

No 0 1 1

Yes

1 0 1

Total 1 1 2

35-40

years

Are you

satisfied with

the current

court system?

No

1

1

Total 1 1

As it can be observed from the table that, having the experience of 0-5 years advocates,

largely satisfied (11 out of 20) and 9 are dissatisfied in all the district. Similarly, based

on the 5-10 years’ experience advocates, a large number of respondents (12 of 18) said

they are not satisfied and the rest of the 6 respondents shown their satisfaction. Out of

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12, Surat and Mehsana district of the respondent are high (4 and 3 respectively) and 2

each from Ahmedabad and Vadodara. Further, those advocates who have 10 -15 years’

experience there are total 26 and among them, 15 respondents said they are not

satisfied and the rest of the 11 are satisfied. In addition to this, out of 15 respondents,

5 from Mehsana, 4 from Surat and 3 from Vadodara showed dissatisfaction. On the

other hand, advocates who are having more experience (15-20 years) out of 17, there

are 12 respondents said they are not satisfied, and 5 respondents said yes. Out of 12, 5

from Vadodara and 3 from Ahmedabad respondents said no. However, in conclusion,

it could be said that, the advocates who have more experience they are highly shown

dissatisfaction with the current court system and less experience said yes, they are

satisfied. Although, it is significant to know about the cause of dissatisfaction.

4.2.2.6.3 Causes of dissatisfaction:

There is the various region that, advocates are not satisfied with the current court

system. These reasons are a delay, lengthy hearings, cost, time and all of the above.

The figure given below represents the same.

Figure:24. Reason for non-satisfaction

As it can be seen in the figure above, 47% of advocates which is the larger portion of

the advocates said all of the above-given reasons followed by 18% said because of

lengthy hearings and more than 20% said because of delay. There are also almost 12%

advocates said because of too much time-consuming. The other reasons are negligible.

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However, these reasons vary from district to district. Therefore, the next section shows

the result of district wise results.

Table: 28. Reasons for the dissatisfaction on the court system by the advocates

District * reasons for the dissatisfaction on the court system by the advocates Cross tabulation

If no, which is the primary reason makes you feel

dissatisfaction?

Total Delay

Lengthy

hearings Cost Time

All of the

above


Rajkot 0 2 0 0 5 7

Surat 5 2 0 3 3 13

Vadodara 2 0 0 2 10 14

Ahmedaba

d

5 2 0 1 4 12

Total 12 11 1 7 28 59

As the table above shows that, the highest number of advocates from all districts said

because of all-cause (i.e. Delay, Lengthy Hearings, Cost, Time and all of the above)

they are not satisfied. Though in the district of Mehsana, out of 13advocatess 6 are

given all reason and 5 advocates are lengthy hearings. Here, it can be noticed that, in

Vadodara out of 14, there are 10 advocates give all the reasons and 2 each delay and

time.

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4.2.2.6.4 Suggesting ADR system to the litigants:

It is important to understand that, whether advocates have suggested about the ADR

system or not and how the clients have reacted etc. therefore this section is the key

aspect for understanding the actual acceptance of ADR by the advocates.

4.2.2.6.4.1 Suggested about the ADR system

The question has been framed to understand whether advocates have taken initiatives

to participate in implementation to diffuse this system. The figure shows the same.

Figure: 24. Suggested about the ADR system

As it can be observed that, 93% of the advocates are said to their clients about the ADR

system to solve their dispute and the rest of the 7% not said. Therefore, there is a need

to understand district wise response about the ADR system.

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Figure: 25. District wise Suggested about the ADR system to resolve their

dispute by Advocates

As the figure depicts advocates, whether they have been suggested about the ADR

system or not before filing the case. The result shows that except Mehsana and

Vadodara all of the advocates suggested about the ADR System. Only in the Mehsana

district advocates 6 out of 20 did not suggest about ADR system before filing the case

and rest of the all-district advocates suggested about this system. Therefore, the next

question asked about what the reaction of litigants about this system is, whether he/she

is willing to adopt or not to resolve the dispute through ADR system.

The reaction of clients on ADR

It is important to analyze how litigants behave after they have been informed about

ADR options by the advocates. This analysis may give a clear picture of the ADR

preference of advocates as well as litigants.

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Figure: 26. The reaction of clients relating to ADR System

As it can be observed that, based on the 93% advocates suggested about the ADR and

approximately 83% of the litigants are interested to adopt ADR system to solve their

dispute and rest of the 17% not interested to solve. Therefore, there is a need to

understand district wise response on the ADR options suggested by advocates and the

reactions of the clients.

Table: 29. Clients reaction on the ADR options given by the advocates

District * clients reaction on the ADR options given by the advocates Cross

tabulation

Count

If yes, how your client has reacted to your

suggestion?

Total

Willing to take part

in the ADR process

Unwilling to take

part in the ADR

process

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Rajkot 14 6 20

Surat 20 0 20

Vadodara 14 5 19

Ahmedaba

d

19 1 20

Total 77 16 93

As can be seen from the above table that, 77 clients out of 93 willing to solve through

the ADR process and 16 are not interested across all the districts. Among 77, 20 clients

are from Surat district followed by 19 from Ahmedabad and 14 each from Rajkot and

Vadodara are willing to resolve the issue through ADR system. Out of 16, 6 clients

from Rajkot and 5 clients from Vadodara and rest of 4 litigants from Mehsana district

said no, they don’t want to solve through ADR system. Hence, the next section

discusses the judge whether S/he has been suggested about this system or not. The

figure given below represents the same.

Figure: 27. Whether the Judge has asked you to resolve your client’s dispute

through ADR

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As it is observed from the figure that, 81% of the advocates said yes the Judge had

asked about the ADR system but 19% said no the judge did not ask about the system

which cannot be ignored because it is also the responsibility of the judge to make aware

about the ADR system. Hence, it can be said the proper implementation of the ADR

system is not spread because of the actors involved in the system is not working

properly. It is important to know about the district wise result. Hence, the next table

given below represents the same.

Table: 30. District * Whether the judge has asked you to resolve your client’s

dispute to resolve your dispute through ADR or not

District * Whether the judge has asked you to resolve your

client’s dispute through ADR or not? Cross tabulation

Whether the judge has

asked you to resolve your

client’s dispute through

ADR or not?

Total No Yes


Rajkot 3 17 20

Surat 1 19 20

Vadodara 4 16 20

Ahmedaba

d

1 19 20

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Total 19 81 100

The above table shows about district wise response of the advocates related to whether

the judge has asked their clients to resolve your dispute through ADR or not. 81Out of

100 advocates have told that the judges have suggested resolving the dispute through

ADR. 19 in the district of Surat and Ahmedabad followed by 17 and 16 from Rajkot

and Vadodara respectively and 10 from Mehsana said yes, the Judge has asked about

the ADR system. Similarly, out of 19 responses are no and among this, single 10 from

Mehsana district, followed by 4 Vadodara and 3 Rajkot said no the judge has not been

asked about the ADR system to solve the dispute. Thus, it can be said that all judges

are not fully implementing section 89 in letter and spirit.

4.2.2.6.4.2 Form of ADR

Broadly, there are four forms of ADR system to resolve the dispute such as Arbitration,

Mediation, Conciliation, and Lok Adalat. The result is based on the 81% the judge has

been suggested about the ADR system.

Figure: 28. Form of ADR has been preferred by advocates

As it can be observed from the figure, based on the 81% the judge has suggested, the

highest number of preferences is given through Mediation (approx 52%) followed by

Arbitration (approx 41%), Conciliation and Lok Adalat are 3% each. These systems

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are depending on the type of case from the district wise response is shown in the table

given below:

Table: 31. Form of ADR preferred by advocates

District * If yes, which form of ADR you have preferred Cross tabulation

If yes, which form of ADR you have

preferred

Total

Arbitratio

n Mediation

Lok

Adalat

Conciliatio

n


Rajkot 4 10 0 3 17

Surat 13 6 0 0 19

Vadodara 9 7 0 0 16

Ahmedaba

d

7 10 2 0 19

Total 33 42 3 3 81

The table shows that out of 81 respondents 42 are preferred to Mediation and 33 are

preferred the Arbitration and 3 each from Lok Adalat and conciliation across all the

districts. Out of 33, 13 are preferred through Arbitration from Surat district and 9 are

from Vadodara and 7 from Ahmedabad and 4 from Rajkot. Similarly, out of 42, there

are 10 each from Rajkot and Ahmedabad preferred and 7 from Vadodara and 9 from

Mehsana. Another form of ADR can be ignored because the total number is 3 each of

the ADR form. These differences among the district because of the type of case and

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advocates experiences. Hence, as it can be seen the highest number is preferred to the

Mediation. Therefore, the question has been framed to whether advocates have taken

any training related to Mediation or not? The next figure represents the same.

4.2.2.6.2 Number of advocates who got training in Mediation:

This analysis is very essential since MCPC has conducted various training to the

advocates for better implementation mediation for resolving disputes.

Figure: 29. The advocates who have undergone the mediation training

As can be seen from the figure that, out of 100, 63 % of the advocates have taken

mediation training and rest of 37 % of respondents did not take any training. It is

important to know about the district wise result. Hence, the next table given below


Table: 32. Advocates who have undergone mediation training

District * Have you undergone any mediation training?

Cross tabulation

Count

Have you undergone any

mediation training?

Total No Yes

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Rajkot 7 13 20

Surat 4 16 20

Vadodara 6 14 20

Ahmedaba

d

5 15 20

Total 37 63 100

The table shows that, out of 63, the 16 advocates from the Surat have taken mediation

training followed by 15 from Ahmedabad, 14 and 13 from Vadodara and Rajkot

respectively. It is noted that the advocates (15 out of 37) from Mehsana district have

not taken any training related to the ADR system. Further, 7 advocates from Rajkot

and 6 from Vadodara and 4 and 5 advocates from Surat and Ahmedabad respectively

did not take any training related to the ADR system.

4.2.6.5 Overall satisfaction of Trial Court’s approach on section 89 referral:

This section discusses the overall satisfaction of the advocates on the functioning of

trial courts on section 89 referral.

Figure: 33. Overall satisfaction of the Trial Court’s approach on section 89

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As it can be seen from the figure that, out of 100, 89% of the advocates taught about

trial Court is in favour of ADR referral under section 89 of CPC and rest of the 11%

said no, the trial Court is not in favour of ADR referral under section 89 of CPC. It is

important to know about the district wise result. Hence, the next table given below


Table: 33. Overall satisfaction of the Trial Court’s approach on section 89

referral

District * Overall satisfaction of Trial Court’s approach on

section 89 referral

Do you think the trial court

is in favour of ADR

referral under section 89 of

CPC?

Total No Yes


Rajkot 2 18 20

Surat 1 19 20

Vadodara 1 19 20

Ahmedaba

d

2 18 20

Total 11 89 100

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The table above shows that, out of 89, the 19 each from the Surat and Vadodara

advocates thought that yes, the trial court is in favour of ADR referral under section

89 of CPC followed by 18 each from Ahmedabad and Rajkot advocates and rest of the

15 advocates from Mehsana. On the other side, there are 11 advocates who said no and

out 11, 5 are from Mehsana followed by 2 each from Ahmedabad and Rajkot and 1

each from Surat and Vadodara.

Suggestion from The Advocates to Implement ADR Referral Under Section 89

In addition to this the question frame for the suggestion from the advocates to

implement ADR referral under section 89. The suggestion has been given into five

options such as Awareness to advocates, Awareness to clients, Awareness to judge and

All of the above and others. The result shows in the figure given below:

Figure: 31. Suggestion from the Advocates to Implement ADR Referral under Section 89

As it can be seen from the figure that, out of 100, 42% of the advocates said there could

be all of the above suggestion and 37% think that there is need to spread awareness to

client. There are also 4% advocates said that there is a need for awareness among

advocates and 2% said need awareness among judges. However, this could be seen

from the district wise response and the table given below represents the same.

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Table: 34. Suggestion from the Advocates to Implement ADR Referral under

Section 89

District * Suggestion from The Advocates to Implement ADR Referral Under

Section 89

Do you have any suggestions for the better

implementation of section 89 referral?

Total

Awareness

of

advocates

Awareness

to client

Awareness

to judges

All of

the

above others


Rajkot 1 5 1 8 5 20

Surat 0 11 0 8 1 20

Vadodara 0 10 0 5 5 20

Ahmedabad 1 3 0 13 3 20

Total 4 37 2 42 15 100

The above table shows the district wise suggestions for the better implementation of

section 89 referral. In the Mehsana district out of 20, 8 each respondent said, there is

a need for awareness among the clients and all of the above options. There are 2

respondents said there is a need for awareness to advocates and 1 each from the

awareness to judges and other options. Similarly, from the Rajkot district, there is a

total 20 response and among these 8 advocates said all of the above options and 5 each

advocate said awareness to the client and other options. There is one each said

awareness to advocates and awareness to judges. Further, from the Surat district, out

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of 20 respondents, 8 advocates said all of the above options and 11 advocates said

awareness to client. There is one advocate said other options. Moreover, in Vadodara

district, there is the highest response (10 out of 20) given to awareness to the client

and 5 each from all of the above and others. Finally, from the Ahmedabad district, 13

advocates said there is a need to all of the above options and 3 each from awareness to

client and awareness to others. There is one advocate said, there is a need for awareness

about the advocates.

Analysis of Judge’s Comments

The judges are another important stakeholder which need to analyses. Although, due

to lack of response and limit of time only 12 responses are able to get from the judges.

Based on their responses. The details are written below:

Figure: 32 Litigants are bringing their disputes before the Court

The figure above represents about why litigants are bringing their disputes before the court and

it can be seen that there are total 12 respondents and out of 12, larger respondents are said other

reason such as mindset of parties, on the part of indecisiveness of Employer/

GOVERNMENT and in absence of Arbitration clause, no other remedy is available

etc. On the other side, 3 respondents said there is no remedy is better than this.

As it is necessary to understand what the judges feel about disposal of cases. In this

context, all of the respondents (total 12) strongly agree that there is a need to improve

to aid the prompt disposal of cases as it is shown in the table given below.

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Table: 35. Feel Improvement is required to Aid the Prompt Disposal of Cases

Further, it has been asked about which is/are the primary reason/s for the limitation of the judicial

proceedings and the option given that Delay, Lengthy hearings, Cost, time and All of the above.

In this context all of the judges are said all the given options above are relevant for the limitation

of the judicial proceedings as shown in t5e figure given below:

Figure: 33. Based on Observation which is/are the primary reasons for the Limitation of

the Judicial Proceeding

The question framed to understand whether judges introduced the ADR system to

clients or not. All respondents said yes, they introduced the ADR system as it has

shown in the figure given below.

Do you feel improvement is required to aid the prompt disposal of cases

Frequency % Valid % Cumulative %

Valid Yes 12 100.0 100.0 100.0

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Figure: 34. Suggested the litigants for resolving their dispute through any form

of ADR

However, as it can be seen form the figure that, all the respondents introduced about

the ADR system. In comparison to clients and advocates responses are almost similar

to this question. The 90 % of the respondents from clients and advocates said about

the judges are correct. It is important to check about that after the introducing about

the ADR system, how the clients and advocates reacted about the ADR system whether

they willing to implement or not in their own cases. The figure is given below

discussed in detail.

Figure: 35 Advocates have reacted about the suggestion of Judges

As can be seen from the figure, how advocates have reacted about ADR suggestion.

The out of 12 respondents, 8 respondents are said advocates are not willing to take part

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in the ADR process and only 3 judges said about the advocates are willing to take part

in the ADR process. Similarly, this question is framed for the clients also and details

can be seen in the given figure below:

Figure: 36 Clients have reacted about the suggestion of Judges

As can be seen from the figure, how clients have reacted about ADR suggestion. Out

of 12 respondents, 8 respondents are said clients are not willing to take part in the ADR

process and only 3 judges said about they are willing to take part in the ADR process.

Although, there are various reason about not willing to take part in the ADR process

such as clients are not well aware of this system as our filed data confirm this and also

advocates are not well trained about ADR mechanism how the cases can be handled

through the ADR. However, it is also trying to understand that, which ADR system is

being suggested by the judges and the result shown in figure given below:

Figure: 37 Form of ADR suggested in Most of the times for the resolution of the

disputes

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As can be seen from the figure that, judges suggested the different form of ADR and

most of the is Arbitration and Conciliation. Out of 12, 9 judges suggested about

arbitration and rest of the 3 judges said about conciliation.

As it is important to know about how many clients refer to the ADR system. The table

given below represents the same. It can be seen from the figure that, all respondents

said that, there is no case settled through ADR after the judges' suggestion.

Figure: 38 After the Referral most of the Cases got

However, this raised the question that, in spite of judge suggestion the clients do not

prefer to ADR. May there is various reason for this, but most importantly, the lack of

knowledge about the ADR which results they are unwilling to accept and also there

are only few experts in this area which can handle such type of case. The figure below

shows the same. It can be seen the out of 12, 07 judges give reason unwilling to accept

the ADR and rest of the 4 judges said there is lack of experts.

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Figure:39 Reason for unsettlement of dispute through ADR

In addition to this, the study also tries to understand how section 89 of CPC can be

implemented in better way. In this context, the question has been asked from the judges

and based on their own experience they said that, Awareness of advocates, Awareness

to client, Awareness to judges, and all of the options. The result shows that all of

respondents (12 judges) said to implement ADR system in better way to there is need

to apply all of the options.

Figure: 40. Suggestions for the better Implementation of Section 89 of CPC

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In summary, it can be compared between all the three stakeholders i.e. advocates,

clients and judges. Firstly, as we asked about whether ADR process has been

introduced by the judges or not. The result shows that all the judges (total 12) said they

have introduced ADR to the clients as well advocates. But, if we see the result from

the clients, only 60% respondents said that ADR has been introduced by Judge and 40

% denied that judges have asked to solve their dispute through ADR. On the other

hand, in terms of advocates only 81 % of respondents said about the judges have been

introduced ADR but all the judges claimed they told to the advocates about the ADR.

Similarly, in terms of willing to take part of ADR process, the judges claimed that,

most of the clients are not willing to solve their dispute through ADR process but in

compare with advocate response they said that, almost 83 % of clients willing to solve

their dispute through ADR and 17 % not willing to accept. In this sense, it could be

said that there is very difficult to say that ADR process system is being properly

implemented.

4.4 Testing of hypothesis:

4.4.1 Hypothesis 1: Litigants are not fully aware of the ADR System

Table:36. Chi-Square Tests Litigants are not fully aware of the ADR System

Chi-Square Tests

Value Df

Asymptotic Significance (2-

sided)

Pearson Chi-Square 1.952a 4 .745

Likelihood Ratio 1.936 4 .747

Linear-by-Linear

Association

.021 1 .885

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The table called Chi-Square Tests shows the results from the chi-square test for the

variables do you know about the ADR and District. Here, it looks at the row called

Pearson Chi-Square and the column Asymp. Sig. (2-sided) to see the p-value for the

test. A p-value smaller than 0.05 indicates that there is a statistically significant

association (at the 5 % level) between the two variables in the test, whereas a p-value

larger than 0.05 suggests that there is not a statistically significant association. Since

the p-value in this table is 0.745 and therefore, it can conclude that the null hypothesis

cannot be rejected because both variables are not associated with one another at a

statistically significant level.

Symmetric Measures

Value Approximate Significance

Nominal by

Nominal

Phi .140 .745

Cramer's V .140 .745

N of Valid Cases 100

However, to justify this test, it has been checked with the different type of ADR system

and the result shown below:


a. 0 cells (0.0%) have expected count less than 5. The minimum expected

count is 7.60.

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1) Awareness of the Lok Adalat:

Table:37. Chi-Square Tests Aware of the Lok Adalat is

Chi-Square Tests

Value df Asymptotic Significance (2-sided)



Linear-by-Linear

Association

.278 1 .598


a. 5 cells (50.0%) have expected count less than 5. The minimum expected count is

00.

Symmetric Measures


Nominal by

Nominal

Phi .262 .143

Cramer's V .262 .143


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Based on the table, it can conclude that the null hypothesis cannot be rejected because

both variables are not associated with one another at a statistically significant level and

Pearson value is 0.143.

2) Awareness of Mediation:

Table:38. Chi-Square Tests Aware of Mediation is

Chi-Square Tests

Value df


sided)



Linear-by-Linear

Association

.021 1 .884



count is 7.40.

Symmetric Measures

Value

Approximate

Significance

Phi .192 .450

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Nominal by

Nominal

Cramer's

V

.192 .450





3) Awareness of the Arbitration

Table:39. Chi-Square Tests Aware of Arbitration

Chi-Square Tests

Value df


sided)



Linear-by-Linear

Association

.333 1 .564



count is 7.80.

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Symmetric Measures


Nominal by

Nominal

Phi .263 .142

Cramer's

V

.263 .142

No of Valid Cases 100




4) Aware of the Conciliation

Table:40. Chi-Square Tests Aware of Conciliation is

Chi-Square Tests

Value df


sided)



Linear-by-Linear

Association

.502 1 .479


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count is 8.80.

Symmetric Measures


Nominal by

Nominal

Phi .434 .001

Cramer's

V

.434 .001


Based on the above table p-value smaller than 0.05 suggests that there is a statistically

significant association. Since the p-value in this table is 0.001 and therefore, it can

conclude that the null hypothesis can be rejected because both variables are associated

with one another at a statistically significant level.

4.3.2 Hypothesis: Neither Advocates nor the Judges explained about the ADR

system

Table:41 Chi-Square Tests Neither Advocates nor the Judges explained about

the ADR system

Chi-Square Tests

Value df Asymptotic Significance (2-sided)

Pearson Chi-Square 396a 4 .355

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Likelihood Ratio 494 4 .343

Linear-by-Linear

Association

265 1 .039


a. 0 cells (0.0%) have expected count less than 5. The minimum expected count is

7.00.

The table called Chi-Square Tests shows the results from the chi-square test for the

variables Is there anybody suggested you resolve your dispute through ADR before

filing of your case and District. Here, it looks at the row called Pearson Chi-Square

and the column Asymp. Sig. (2-sided) to see the p-value for the test. A p-value smaller

than 0.05 indicates that there is a statistically significant association (at the 5 % level)

between the two variables in the test, whereas a p-value larger than 0.05 suggests that

there is not a statistically significant association. Since the p-value in this example is

0.335 and therefore, it can conclude that the null hypothesis cannot be rejected because

both variables are not associated with one another at a statistically significant level.

Symmetric Measures


Nominal by

Nominal

Phi .210 .355

Cramer's

V

.210 .355


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CHAPTER V

CONCLUSION AND RECOMMENDATIONS

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CHAPTER V

CONCLUSION AND RECOMMENDATIONS

5.1 Conclusion

This chapter concludes the whole argument of the study and suggested some

recommendation for future judicial reform. Though, it is not intended to argue about

ADR system is good or bad however it talks about how the court system can be

improved to resolve the cases as amicably as possible and reduce the pending and

future dispute thereby reduce the workload of the court. It is always to be remembered

that the ADR system is not substituted to the judicial system; it is complementary to

the court system.

It is a well-known fact that there are plenty of civil cases are pending in Indian courts

due to lack of resources including human resources and infrastructure, According to

the National Judicial Data Grid, there are about 73 lakhs civil cases are pending across

the country. Although, there are various steps have been taken towards the

improvement of the system such as speed up the judicial process, the establishment of

new courts and increase the number of judges, etc. Besides this, in 1999 the union



arbitration or mediation or Lok Adalat which is known as ADR system.

In this context, this study has scrutinized the referral process of the civil courts under

section 89 of the civil procedure code and which ADR form is highly used to resolve

the dispute. In the backdrop of the study, it has also examined the accomplishment of

settlement of the dispute through section 89 referral and what could be the possible

strategies to implement ADR system in a better way. Our research team has used

doctrinal and non-doctrinal research methods to find out the current implementation

scenario and what is the problem faced by the stakeholders while implementing this

section and come with the possible suggestions for the better implementation of this

section.

Based on the analysis of section 89 of CPC along with various judgments of Supreme

Court and 238th report of Law Commission of India, our research team has concluded

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that this section is required substantial amendments on the exact procedure supposed

to be followed in the ADR referral process by the judges and inclusion of new ADR

mechanisms under Section 89 referral.

For understanding the practical difficulties and realities on the implementation of

section 89 of CPC, our research team has collected 212 samples across the five district

of Gujarat on the basis of the different five zones. Among 212 samples, 100 samples

have collected from clients and another 100 samples have collected from Advocates

and 12 samples have collected from retired judges.

However, the study, first of all, has tried to understand the nature of dispute among the

litigants, and the result showed that 29 % of the dispute related to property and 25 %

belonged to matrimonial and rest of the 46 % belonged to others. Although, in contrast

to advocates perception, there are various type of dispute and result shows that the

highest number of disputes are related to civil cases (53 %) followed by civil and

criminal cases (23 %) across all the districts. There are other cases also such as

property (8 %) and civil and family cases (3 %), matrimonial cases (4 %), property and

civil and constitutional law-related issues are 1 %. Here, it can be concluded that

because lawyers have a better understanding of the legal process therefore, they can

distinguish the nature of the dispute in a better way.

Further, based on the nature of dispute it is significant to know about the how much

time have been taken by these disputes for the resolution in the court system because

based on the time consumption of cases it can be understood the importance or need

of the ADR system. The time duration of the cases has been separated into three parts

i.e. 0-2 years, 2-5 years and more than five years. According to litigants, the result

shows that 57 % of the case time duration is 0-2 years and 28 % of the cases are 2-5

years and rest of cases are more than 5 years. In comparison to advocates, 46 % of the

cases time duration is 0-2 years and 38 % of the cases are 2-5 years and the rest of the

16 % cases take more than 5 years.

Further, this study has tried to understand what could be a possible reason for filing

the case in the court and based on the litigants, the study has found that 61 % of the

respondents think that there is no remedy is better than this option and 14 % of the

respondents said because of inducement from others. Though 19 % of respondents

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have given other reasons and only 6 % have told that they have filed cases for seeking

revenge. Similarly, based on the advocates view 68 % of the respondents have thought

that there are no remedy is better than this option and 13 % of the respondents have

told because of seeking revenge. Though 14 % of respondents have given other reasons

and only 5 % respondents have told that the clients have filed their cases by way of

inducement from others.

Our research team has believed that the number of filing cases depends on the litigant's

education and qualification Our research team has assumed that the educated person

follow the proper process to solve the dispute. It can be observed from the data that

out of 100 litigants, 74 litigants are graduated litigants and among them, there are 48

respondents have believed that there is no remedy is better than Litigation and 14 %

of respondents have told that other reasons followed by 10 % of respondents have told

that Inducement from others and two-%of respondents have filed the cases because

they want to take revenge.

This study has tried to understand the perception of litigants and advocates about the

current court system. The result shows that 55 % of the litigants are not satisfied with

the current court system and 45 % of the litigants satisfied with the current court

system. In comparison from the advocates, out of 100 advocates, 59 % of the

respondents are not satisfied with the current court system and 41 % are satisfied. In

the litigants as well as advocates have highly dissatisfaction about the current court

system. It is important to know about the experience of advocates and their satisfaction

of current court system, result states that having the experience of 0-5 years advocates,

largely satisfied (11 out of 20) and 9 are dissatisfied in all the district. Similarly, based

on the 5-10 years’ experience advocates, a large number of respondents (12 of 18) said

they are not satisfied and the rest of the 6 respondents shown their satisfaction. Out of

12, Surat and Mehsana district of the respondent are high (4 and 3 respectively) and 2

each from Ahmedabad and Vadodara. Further, those advocates who have 10 -15 years’

experience there are total 26 and among them, 15 respondents said they are not

satisfied and the rest of the 11 are satisfied. In addition to this, out of 15 respondents,

5 from Mehsana, 4 from Surat and 3 from Vadodara showed dissatisfaction. On the

other hand, having more experience advocates (15-20 years) out of 17, there are 12

respondents said they are not satisfied, and 5 respondents said yes. Out of 12, 5 from

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Vadodara and 3 from Ahmedabad respondents said no. However, in conclusion, it

could be said that, the advocates who have more experience they are highly shown

dissatisfaction with the current court system and less experience said yes, they are

satisfied. Although, it is significant to know about the cause of dissatisfaction.

However, there are various reasons for the dissatisfaction about the court system such

as delay, lengthy proceedings. Based on the advocates, 47 % of advocates which is the

larger portion of the advocates said all of the above-given reasons followed by 18 %

said because of lengthy hearings and more than 20 % said because of delay. There are

also almost 12% of advocates said because of too much time taken. Further, litigants’

results are that 54 % of litigants, the larger portion of the litigants said all of the above-

given reasons followed by 20 % said because of lengthy hearings and more than 14 %

said because of delay. The other reasons are negligible. However, it depends on the

litigants where they belong to the particular district.

Moreover, it is important to check at the awareness level, whether advocates have

taken initiatives to participate in the implementation to diffuse this system or not and

93 % of the advocates are said to their clients about the ADR system to solve their

dispute and rest of the 7 % not said. Out of this, 93 % advocates suggested the ADR

and approximately 83 % of the litigants are interested to adopt ADR system to solve

their dispute and rest of the 17 % not interested to solve. On the other side, 76 % of

the litigants are interested to adopt ADR system to solve their dispute and rest of the

24 % not interested to solve.

Additionally, as a part of the implementation of the act, it is the responsibility of

another stakeholder to make aware of the system and suggest to the litigants. The result

shows that 65 % of the litigants got their suggestion about the ADR system before

filing the case and rest of the 35 % not get any suggestion about the ADR system. If,

we see from the district wise 16 litigants out of 20 from the Ahmedabad said they got

their suggestion followed by 14 from the Vadodara and rest of the district as an average

10 litigants from each district got their suggestion. It is interesting to find out in spite

of lawyer and judge the 35Whether the Judge has asked you to resolve your client’s

dispute through ADR % of litigants did not get any suggestion about this system.

Partially, it seeks to know about the 81 % of the advocates said yes the Judge had asked

about the ADR system but 19 % said no the judge did not ask about the system which

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cannot be ignored because it is also the responsibility of the judge to make aware about

the ADR system. Hence, it can be said the proper implementation of the ADR system

is not spread because of the actors involved in the system is not working properly. In

compare to litigants, 60 % of the litigants said yes the judge has been asked about the

ADR system but 40 % of the total litigants said no, the judge has not been asked about

the system which cannot be ignored because it is also responsibility of the judge to

make aware about the ADR system to litigants.

Further, as one of the objective of the study is to understand about which form of the

ADR system is more preferable and based on the result, the litigants said the highest

number of favourable response is given to arbitration (38.33 %) followed by

mediation, Conciliation, and Lok Adalat is 31, 23, 6 % respectively. On the other hand,

the 81 % the judge has suggested, the highest number of preferences is given through

Mediation (approx 52 %) followed by Arbitration (approx 41 %), Conciliation and Lok

Adalat are 3 % each.

This study also has analysed some recommendation given by advocates for the better

implementation of this section. The result suggested that, out of 100, 89 % of the

advocates taught about trail Court is in favour of ADR referral under section 89 of

CPC and rest of the 11 % said no, the trial Court is not in favour of ADR referral under

section 89 of CPC. Additionally, out of 100, 42 % of the advocates said there could be

all of the above suggestion and 37 % think that there is a need to spread awareness to

the client. There are also 4 % advocates said that there is a need for awareness among

advocates and 2 % said need awareness among judges.

In addition to this, the primary reason for the limitation of the judicial proceedings is

Delay, Lengthy hearings, Cost, and time as said by the judges. The Judges suggested

about the different form of ADR and mostly is Arbitration and Conciliation. Out of 12,

9 judges have suggested about arbitration and rest of the 3 judges suggested about

conciliation. In spite of judges’ suggestion to the clients, they do not prefer to ADR.

Although, there is various reason for this, most importantly, the lack of knowledge

about the ADR which results they are unwilling to accept and also there are only few

experts in this area which can handle such type of case. The study found that, out of

12, 07 judges have given reasons for unwilling to accept the ADR and rest of the 4

judges said there is lack of experts.

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Our research team has asked about how section 89 of CPC can be implemented in a

better way from the judges. Based on their own experience they said that Awareness

of advocates, Awareness to client, Awareness to judges, must be created for the better

implementation of section 89 of CPC. The result shows that all of respondents (12

judges) said to implement ADR system in better way to there is need to apply all of

the options.

It can be compared between all the three stakeholders i.e. advocates, clients and judges.

Firstly, as we asked about whether ADR process has been introduced by the judges or

not. The result shows that all the judges (total 12) said they have introduced ADR to

the clients as well advocates. But, if we see the result from the clients, only 60 %

respondents said that ADR has been introduced by Judge and 40 % denied that judges

have asked to solve their dispute through ADR. On the other hand, in terms of

advocates only 81 % of respondents said about the judges have been introduced ADR

but all the judges claimed they told to the advocates about the ADR. Similarly, in terms

of willing to take part of ADR process, the judges claimed that, most of the clients are

not willing to solve their dispute through ADR process but in compare with advocate

response they said that, almost 83 % of clients willing to solve their dispute through

ADR and 17 % not willing to accept. In this sense, it could be said that there is very

difficult to say that ADR process system has been accepted and properly implemented

by all the stakeholders.

While conducting this study, our research team has noticed that very few advocates

only recognised that section 89 is a common provision and as part of normal court

procedure. Whereas, many of the advocates have believed that ADR referral is

something different discipline. When we approached the advocates for our data collections,

many of the advocates have told that please approach the advocates who are dealing with

arbitration cases. Similarly, some judges also told that please approach arbitration practitioners

for your survey.

Hence, the purpose of this research is not to analyse that, whether ADR system is good

or bad to resolve the dispute between the litigants but, it tries to understand the

obstacles to implement section 89 referral and how it could become a better option for

solving the dispute. In this context, one of the major challenges of this system that, the

litigants are not fully aware of this system because of the lack of creating awareness

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among the litigants by the Judges and advocates. As, one of the hypotheses proves

that, neither Judges nor Advocates told to the litigants about the ADR system.

Similarly, it can be also seen that there is a lack of willingness to solve the dispute

through system among the litigants. Another challenge can be seen among the

advocates that, most of the advocates are not trained about the system that how it could

be handled. Therefore, there is a need to provide training about this system among the

advocates.

5.2 Recommendations:

Based on the above conclusion, our research team would like to suggest the following

recommendations,-

5.2.1 Amendment in section 89 of CPC

89: Settlement of disputes outside the court: Where it appears to the court, having

regard to the nature of the dispute involved in the suit or another proceeding that the

dispute is fit to be settled by one of the ADR mechanism then, the court shall,

preferably before framing the issues, record its opinion and direct the parties to attempt

the resolution of a dispute through one of the said ADR processes in accordance with

the sub-sections.

1) If the court decides the reference of the dispute to any non-adjudicatory

alternative dispute resolution processes, Including Conciliation, mediation,

judicial settlement, settlement through Lok Adalat, DRB, Early Neutral

Evaluation, mini-trial and ODR then, the court shall refer the same to such

ADR mechanisms with the consent of the parties or its own motion. However,

the court cannot refer to the dispute to Conciliation, mini-trial, Early Neutral

Evaluation, DRB without the written consent of the parties.

2) If the court decides the reference of a dispute to any of the adjudicatory

alternative dispute resolution processes Including Arbitration, Permanent Lok

Adalat, Dispute adjudicatory Board and Expert Determination then, the court

shall, preferably before framing the issues, record its opinion and direct the

parties to attempt the resolution of the dispute through one of the said

adjudicatory processes upon the written consent of the parties.

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3) The court decides to refer the dispute to a judicial settlement then, it can be

referred to any judge including presiding judge of that dispute. If the presiding

the judge decides to resolve the dispute through judicial settlement then, he may

resolve the dispute through judicial settlement upon the express consent of the

parties. However, he must ensure that the compromise process shall be tried

before framing of the issues.

4) If the court decides to refer the dispute to mediation then, it may refer to a person

or an institution including court-annexed mediation and procedure of such

mediation shall be governed by mediation rules of such institution or respective

High Court mediation rules.

5) If the court decides to refer the dispute to Lok Adalat or Permanent Lok Adalat

then the sections 19-22 and section 22A-22E will apply respectively.

6) If the court decides to refer the dispute to arbitration or Conciliation then,

provisions of Arbitration and Conciliation Act will govern the proceedings of

Arbitration and Conciliation.

7) If the court refers the dispute to any of the non-adjudicatory dispute resolution

the mechanism then, settlement outcome of the dispute should be filed before

the court and the court must review settlement agreement or award. The court,

if it finds any inadvertent mistakes or obvious errors, it shall draw the attention

of the conciliator or the Lok Adalat or the parties as the case may be who shall

take necessary steps to rectify the agreement or award suitably with the consent

of parties.

5.2.2 Amendment in the order XX of CPC

Our research team would like to propose the following Amendment in the Order XX

(Judgment and Decree) under CPC for ensuring the effective implementation of

section 89 of CPC by the judges,-

While writing the judgment, the judge shall state that whether the particular dispute

has been considered for ADR referral under section 89 or not and If it has been referred

to any form of ADR then, the outcome of the same must be mentioned in the judgment.

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5.2.3 Other recommendations:

Our research team would like to recommend that there must be a regular audit of court-

annexed mediation with regards to a number of cases filed and resolved in a particular

centre. Based on this information dispute centric mediation process can be developed.

Further, there must be concrete information about the number of mediation conducted

by the MCPC mediation trainees.

Our research team would like to suggest that adequate training must be given to the

advocates and judges about various conventional and new form of ADR mechanisms

and the importance and features of these mechanisms. Awareness programme must be

planned specifically for the litigants and the common public who will be the future

litigants on the availability of ADR mechanisms for the resolution of their disputes.

NJDG must maintain a separate data on the section 89 referral and do the regular audit

on the success and failure of referred cases and thereby, the government could able to

bring suitable special dispute resolution policy for each dispute on regular basis.

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Annexure I

Questioners which are used in the data collection

Part A. Questionnaire for litigants

Name:

Education:

Occupation:

Nature of dispute involved:

Duration:

1) Why you have filed your case?

a) No remedy is better than this

b) To seek revenge

c) Inducement from others

d) Other reasons:

2) Are you satisfied with the current court system?

a) Yes

b) No

3) If no, which is the primary reason makes you feel dissatisfaction?

a) Delay

b) Lengthy hearings

c) Cost

d) Time

e) All of the above

4) Would you like to resolve your dispute through ADR?

a) Yes

b) No

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5) Whether your advocate has suggested you resolve your dispute through ADR or

not?

a) Yes

b) No

6) Whether the judge has asked you to resolve your dispute through ADR or not?

a) Yes

b) No

7) If yes, which form of ADR?

a) Arbitration

b) Mediation

c) Conciliation

d) Lok Adalat

8) Do you know what ADR is?

a) Yes

b) No

9) Do you know what Lok Adalat is?

a) Yes

b) No

10) Do you know what mediation is?

a) Yes

b) No

11) Do you know what arbitration is?

a) Yes

b) No

12) Do you know what conciliation is?

a) Yes

b) No

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Part B. Questioner for advocates

Name:

Professional experience:

Nature of dispute handled:

Duration:

1) Why litigants are bringing their disputes before the court?


b) To seek revenge


d) Other reasons


a) Yes

b) No

3) If No, which is the primary reason makes you feel dissatisfaction?

a) Delay

b) Lengthy hearings

c) Cost

d) Time

e) All of the above

4) Whether you have suggested any of your clients resolve his dispute with any

form of ADR?

a) Yes

b) No

5) If yes, how your client has reacted to your suggestion?

a) Willing to take part in the ADR process

b) Unwilling to take part in the ADR process

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6) Whether the judge has asked you to resolve your client’s dispute through ADR

or not?

a) Yes

b) No

7) If yes, which form of ADR you have preferred

a) Arbitration

b) Mediation

c) Lok Adalat

d) Conciliation

8) Have you undergone any mediation training?

a) Yes

b) No

9) Do you think the trial court is in favour of ADR referral under section 89 of

CPC?

a) Yes

b) No

10) Do you have any suggestions for the better implementation of section 89

referral?

a) Awareness of advocates

b) Awareness to client

c) Awareness to judges

d) All of the above

e) Others

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Part C . Questioner for judges

Name:

Professional experience:

1) Why litigants are bringing their disputes before the court?


b) To seek revenge


d) Other reasons


a) Yes

b) No

3) If no, which is the primary reason makes you feel dissatisfaction?

a) Delay

b) Lengthy hearings

c) Cost

d) Time

e) All of the above

4) Whether you have suggested the disputants resolve their dispute through any

form of ADR?

a) Yes

b) No

5) If yes, how advocates have reacted about your suggestion?



6) If yes, how clients have reacted to your suggestion?



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c) Go by the decision of their advocates

d) Unknown

7) Which form of ADR you have suggested in most of the times for the resolution

of the disputes?

a) Arbitration

b) Mediation

c) Lok Adalat

d) Conciliation

8) After the referral, most of the cases got-

a) Settled

b) Unsettled and coming back to the court

9) Reasons for unsettlement of disputes through ADR is

a) Party’s unwillingness

b) Advocates unwillingness

c) Lack of trained ADR experts

d) Other

10) Do you have any suggestions for the better implementation of section 89

referral?

a) Awareness of advocates

b) Awareness to client

c) Awareness to judges

d) All of the above

e) Others

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Annexure-II

The 238th report of Law Commission of India Recommendations on the

Amendment of Section 89 of CPC

89: Settlement of disputes outside the court -

1. Where it appears to the court, having regard to the nature of the dispute

involved in the suit or another proceeding that the dispute is fit to be settled by one of

the non-adjudicatory alternative dispute resolution processes, namely, conciliation,

judicial- settlement, settlement through Lok Adalat or mediation the court shall,

preferably before framing the issues, record its opinion and direct the parties to attempt

the resolution of dispute through one of the said processes which the parties prefer or

the court determines.

2. Where the parties prefer conciliation, they shall furnish to the court the name

or names of the conciliators and on obtaining his or their consent, the court may specify

a time- limit for the completion of conciliation. Thereupon, the provisions of sections

65 to 81 of the Arbitration and Conciliation Act, 1996, as far as may be, shall apply

and to this effect, the court shall inform the parties. A copy of the settlement agreement

reached between the parties shall be sent to the court concerned. In the absence of a

settlement, the conciliator shall send a brief report on the process of conciliation and

the outcome thereof.

3. Where the dispute has been referred:-

a) for judicial-settlement, the Judicial Officer shall endeavour to effect a

compromise between the parties and shall follow such procedure as may be prescribed;

b) to Lok Adalat, the provisions of sub-sections (3) to (7) of section 20, sections

21 and 22 of the Legal Services Authorities Act, 1987 shall apply in respect of the

dispute so referred and the Lok Adalat shall send a copy of the award to the court

concerned and in case no award is passed, send a brief report on the proceedings held

and the outcome thereof;

c) for mediation, the court shall refer the same to a suitable institution or person or

persons with appropriate directions such as time-limit for completion of mediation

and reporting to the court.

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(4) On receipt of a copy of the settlement agreement or the award of Lok Adalat,

the court, if it finds any inadvertent mistakes or obvious errors, it shall draw the

attention of the conciliator or the Lok Adalat who shall take necessary steps to rectify

the agreement or award suitably with the consent of parties.

Without prejudice to section 8 and other allied provisions of the Arbitration and

Conciliation Act, 1996, the court may also refer the parties to arbitration if both parties

enter into an arbitration agreement or file applications seeking reference to arbitration

during the pendency of a suit or other civil proceeding and in such an event, the

arbitration shall be governed, as far as may be, by the provisions of the Arbitration and

Conciliation Act, 1996. The suitor another proceeding shall be deemed to have been

disposed of accordingly".132

132 Supra note 90

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Annexure III

High Court of Gujarat Instruments on the implementation of section 89 of CPC

Part - A

Civil Procedure Mediation (Gujarat) Draft Rules, 2007

Rule 1: Title

a. These Guidelines in Part. II shall be called the 'Civil Procedure Mediation

(Gujarat) Draft Rules, 2007.

b. These Draft Rules shall come into force from the date of their publication in

the Official Gazette.

Rule 2: Appointment of mediator

a. Parties to a suit may all agree on the name of the sole mediator for mediating

between them.

b. Where there are two sets of parties and are unable to agree on a sole mediator,

each set of parties shall nominate a mediator.

c. Where parties agree on a sole mediator under, clause (a) or where parties

nominate more than one mediator under clause (b), the mediator need not

necessarily be from the panel of mediators referred to in Rule 3 nor. bear the

qualifications referred to in Rule 4 but should not be a person who suffers

from toe disqualifications referred to in Rule 5.

d. Where there are more than two sets of parties having diverse interests, each

set shall nominate a person on its behalf and the said nominees shall select

the sole mediator and failing unanimity in that behalf, the Court shall appoint

a sole mediator.

Rule 3: Panel of mediators

a. The High Court shall, for the purpose of appointing mediators between parties

in suits filed on its original side, prepare a panel of mediators and publish the

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same on its Notice Board, within ninety days of the coming into force of these

Guidelines, with a copy to the Bar Association attached to the High Court.

b. (i) The Courts of the Principal District and Sessions Judge in each District or

the Courts of the Principal Judge of the City Civil Court or Courts of equal

status shall, for the purposes of appointing mediators to mediate between

parties in suits filed on their original side, prepare a panel of mediators, within

a period of ninety days of the commencement of these Guidelines, after

obtaining the approval of the High Court to the names included in the panel,

and shall publish the same on their respective Notice Boards.

(ii) Copies of the said panels referred to in clause(i) shall be forwarded to all

the Courts of equivalent jurisdiction or Courts subordinate to the Courts

referred to in sub-clause (i) and to the Bar associations attached to each of the

Courts :

c. The consent of the persons whose names are included in the panel shall be

obtained before empanelling them.

d. The panel of names shall contain a detailed Annexure giving details of the

qualifications of the mediators and their professional or technical experience

in different fields.

Rule 4: Qualifications of persons to be empanelled under Rule 3

The following persons shall be treated as qualified and eligible for being enlisted in

the panel of mediators under Rule 3, namely :

a. (i)Retired Judges of the Supreme Court of India;

(ii) Retired Judges of the High Court;

(iii) Retired Principal District and Sessions Judges or retired Judges of the City

Civil Court or Courts of equivalent status.

b. Advocates with at least ten years standing at the Bar at the level of the Supreme

Court or the High Court, or the District Courts or Courts of equivalent status

equivalent to the Court where the dispute is pending:

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c. Experts or other professionals with at least fifteen years standing; or retired

Class-I Government officers.

d. Institutions which are themselves experts in mediation and have been

recognized as such by the High Court provided the names of its members are

approved by the High Court initially or whenever there is a change in

membership.

Rule 5: Disqualifications of persons:

The following persons shall be deemed to be disqualified for being impanelled as

mediators:

i. any person who has been adjudged as insolvent or is declared of unsound mind.

ii. or any person against whom criminal charges involving moral turpitude are

framed by a criminal court and are pending, or

iii. any person who has been convicted by a criminal court for any offence

involving moral turpitude;

iv. any person against whom disciplinary proceedings or charges relating to moral

turpitude have been initiated by the appropriate disciplinary authority which is

pending or has resulted in a punishment.

v. any person who is interested or connected with the subject-matter of dispute or

is related to anyone of the parties or to those who represent them, unless such

objection is waived by all the parties in writing.

vi. any legal practitioner who has or is appearing for any of the parties in the suit

or in any other suit or proceedings, unless the parties waive in writing the

objection available on this ground.

vii. such other categories of persons as may be notified by the High Court.

Rule 6: Venue for conducting mediation

The mediator shall conduct the mediation at one or other of the following places:

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i) The venue of the Lok Adalat or Permanent Lok Adalat.

ii) Any place identified by the Court for the purpose of conducting mediation.

iii) Any place identified by the Bar Association or State Bar Council for the

purpose of mediation.

iv) Any other, place as may be agreed upon by the parties subject to the approval

of the Court.

Rule 7: Preference

The Court shall while nominate any person from the panel of mediators referred to in

Rule.3, consider his suitability for resolving the particular class of dispute involved in

the suit and shall give preference to those who have a proven record of successful

mediation or who have special qualification or experience in mediation.

Rule 8: Duty of mediator to disclose certain facts

(a) When a person is approached in connection with his possible appointment as a

mediator, the person shall disclose to the parties, any circumstances likely to

give rise to justifiable doubt as to his independence or impartiality.

(b) Every mediator shall, from the time of his appointment and throughout the

continuance of the mediation proceedings, without delay, disclose to the parties

about the existence of any of the circumstances referred to in clause" (a).

Rule 9: Cancellation of appointment

Upon information furnished by the mediator under Rule 8 or upon any other

information received from the parties or other persons, upon application made by any

party or otherwise, if the Court, in which the suit is filed, is satisfied, after conducting

such enquiry as it deems fit, and after giving a hearing to the mediator, that the said

information has raised a justifiable doubt as to the mediator's independence or

impartiality, it shall cancel the appointment' by a reasoned order and replace him by

another mediator.

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Rule 10: Removal or deletion from the panel

A person whose name is placed in the panel referred to in Rule 3 may be removed or

his name is deleted from the said panel, by the Court which empanelled him, if:

(i) he resigns or withdraws his name from the panel for any reason;

(ii) he is declared insolvent or is declared of unsound mind;

(iii) he is a person against whom criminal charges involving moral turpitude are

framed by a criminal court and are pending;

(iv) he is a person who has been convicted by a criminal court for any offence

involving moral turpitude;

(v) he is a person against whom disciplinary proceedings on charges relating to

moral turpitude have been initiated by the appropriate disciplinary authority,

which is pending or has resulted in a punishment;

(vi) he exhibits or displays conduct, during the continuance of the mediation

proceedings, which is unbecoming of a mediator;(

(vii) the Court which empanelled, upon receipt of information, if it is satisfied, after

conducting such inquiry as it deem fit, is of the view, that it is not possible or

desirable to continue the name of that person in the panel,Provided that, before

removing or deleting his name, under clause (vi) and (vii), the Court shall hear

the mediator whose name is proposed to be removed or deleted from the panel

and shall pass a reasoned order.

Rule 11: Procedure of mediation

(a) The parties may agree on the procedure to be followed by the mediator in the

conduct of the mediation proceedings.

(b) Where the parties do not agree on any particular procedure to be followed by

the mediator, the mediator shall follow the procedure hereinafter mentioned,

namely :

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(i) he shall fix, in consultation with the parties, a time schedule, the dates

and the time of each mediation session, where all parties have to be

present;

(ii) he shall hold the mediation conference in accordance with the

provisions of Rule 6;

(iii) he may conduct joint or separate meetings with the parties;

(iv) each party shall, ten days before a session, provide to the mediator, a

brief memorandum, possibly in non adversarial forum, setting forth

the issues, which according to it, need to be resolved, and its position

in respect to those issues and all information reasonably required for

the mediator to understand the issue; such memoranda shall also be

mutually exchanged between the parties;

(v) each party shall furnish to the -mediator, copies of pleadings or

documents or such other information as may be required by him in

connection with the issues to be resolved. Provided that where the

mediator is of the opinion that he should look into any original

document, the Court may permit him to look into the original

document before such officer of the Court and on such date or time as

the Court may fix.

(vi) each party shall furnish to the mediator such other information as may

be; required by him in connection with the issues to be resolved.

(c) Where there is: more than one mediator,-the mediator nominated by each party

shall first confer with the party that nominated him and shall thereafter interact

with the other mediators, with a view to resolving the disputes.

Rule 12: Mediator not bound by Evidence Act, 1872 or Code of Civil Procedure,

1908:

The mediator shall not be bound by the Code of Civil Procedure 1908 or the Evidence

Act, 1872, but shall be guided by principles of fairness and justice, and also have

regard to usages of trade, if any, and the nature of the dispute.

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Rule13: Non-attendance of parties at sessions or meetings on due dates

(a) The parties shall be present personally or may be represented by their advocates

or power of attorney holders at the meetings or sessions notified by the

mediator. However, a close relative or friend may remain present with authority

letter obtained from the mediator at the commencement of the hearing.

(b) If a party fails to attend a session or a meeting notified by the mediator, other

parties or the mediator can apply to the Court in which the suit is' filed, to issue

appropriate directions to that party to attend before the mediator and if the

Court finds that a party is absenting himself before the mediator without

sufficient reason, the Court may take action against the said party by imposition

of costs.

(c) The parties not resident in India may be represented by their counsel or power

of attorney holders at the sessions or meetings.

Rule 14: Administrative assistance

In order to facilitate the conduct of mediation proceedings, the parties, or the mediator

with the consent of the parties, may arrange for administrative assistance by a suitable

institution or person.

Rule 15: Offer of settlement by parties

(a) Any party to the suit may, 'without prejudice', offer a settlement to the other

party at any stage of the proceedings, with notice to the mediator.

(b) Any party to the suit may make a, 'with prejudice' offer, to the other party at

any stage of the proceedings, with notice to the mediator.

(c) Any such offer may be disclosed to the mediator during a joint meeting or an

individual meeting. Such offer disclosed during an individual meeting may be

disclosed by the mediator to the other party as per the instructions of the party

making the offer.

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Rule 16: Rule of mediator

The mediator shall attempt to facilitate voluntary resolution of the dispute by the

parties, and communicate the views of each party to the other, assist them in

identifying issues, reducing misunderstandings, clarifying priorities, exploring areas

of compromise and generating options in an attempt to solve the dispute, emphasizing

that it is the responsibility of the parties to take decision which affects them; he shall

not impose any terms of settlement on the parties.

Rule 17: Parties alone responsible for taking a decision;

The parties must understand that the mediator only facilitates, in arriving at a decision

to resolve disputes and that he will not and cannot impose any settlement nor does the

mediator give any warranty that the mediation will result in a settlement. The mediator

shall not impose any decision on the parties.

Rule 18: Time limit for completion of mediation:

On the expiry of ninety days from the date fixed for the first appearance of the parties

before, the mediator, the mediation shall stand terminated, unless the Court, which

referred the matter, either suo moto, or upon "request by the mediator or any of the

parties, and upon hearing all the parties, is of the view that extension of time is

necessary or maybe useful; but such extension shall not be beyond a period of thirty

days at a time unless the Court records reasons for granting extension for a longer

period, provided that the total period of all extensions shall not exceed one hundred

twenty days.

Rule 19: Parties to act in good faith:

While no one can be compelled to commit to settling his case in advance of mediation,

all parties shall commit to participate in the proceedings in good faith with the intention

to settle the dispute, if possible.

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Rule 20: Confidentiality, disclosure, and inadmissibility of information

1. When a mediator receives confidential information concerning the dispute

from any party, he shall disclose the substance of that information to the other

party, if permitted by the first party.

2. when a party gives information to the mediator subject to a specific condition

that it be kept confidential, the mediator shall not disclose that information to

the other party, nor shall the mediator voluntarily divulge any information

regarding the documents or what is conveyed to him orally as to what

transpired during the mediation.

3. Receipt or perusal, or preparation of records, reports or other documents by the

mediator, or receipt of information orally by the mediator while serving in that

capacity, shall be confidential and the mediator shall not be compelled to

divulge information regarding the documents nor in regard to the oral

information nor as to what transpired during the mediation.

4. Parties shall maintain confidentiality in respect of events that transpired during

mediation and shall not rely on or introduce the said information in any other

proceedings including the proceedings were from the reference has arisen as to

:

(a) views expressed by a party in the course of the mediation proceedings;

(b) documents obtained, during the mediation which were expressly

required to be treated as confidential or other notes, drafts or

information given by parties or mediators;

(c) proposals made or views expressed by the mediator,

(d) admission made by a party in the course of mediation proceedings;

(e) the fact, that a party had or had not indicated willingness to accept

a proposal;

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5. There shall be no stenographic or audio or video recording of the mediation

proceedings, except with the prior written consent of the parties and the

mediator.

Rule 21: Privacy

Mediation sessions and meetings are private; only the concerned parties or their

counsel or power of attorney holders can attend. Other persons may attend only with

the permission of the parties or with the consent of the mediator.

Rule 22: Immunity

No mediator shall be held liable for anything bona fide has done or omitted to be done

by him during the mediation proceedings for civil or criminal action nor shall he be

summoned by any party to the suit to appear in a Court of law to testify in regard to

information received by him or action taken by him or in respect of drafts or records

prepared by him or shown to him during the mediation proceedings.

Rule 23: Communication between the mediator and the Court

(a) In order to preserve the confidence of parties in the Court and the neutrality of

the mediator, there should be no communication between the mediator and the

Court, except as stated in clauses (b) and (c) of this Rule.

(b) If any communication between the mediator and the Court is necessary, it shall

be in writing and copies of the same shall be given to the parties or their counsel

or power of attorney.

(c) Communication between the mediator and the Court shall be limited to

communication by the mediator:

(i) with the Court about the failure of the party to attend;

(a) with the Court about the need for extension of the time limit for completion

of mediation;

(ii) with the Court with the consent of the parties;

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(iii) regarding his assessment that the case is not suited for settlement through

mediation;

(iv) that the parties have settled the dispute or disputes.

Rule 24: Settlement Agreement

1. Where an agreement is reached between the parties in regard to all the issues

in the suit or some of the issues, the same shall be reduced to writing and signed

by the parties or their power of attorney holder. If any counsel has represented

the parties, they shall attest the signature of their respective clients.

2. The agreement of the parties so signed and attested shall be submitted to the

mediator who shall, with a covering letter signed by him, forward the same to

the Court in which the suit is pending with a direction to the parties to appear

before the Court on a specific date.

3. Where no agreement is arrived at between the parties, before the time limit

stated in Rule 18 or where the mediator is of the view that no settlement is

possible, he shall report the same to the said Court in writing.

Rule 25: Court to fix a date for recording settlement and passing decree:

1. Within seven days of the receipt of any settlement, the court shall issue a notice

to the parties fixing a day for recording settlement, such date not being beyond

a further period of fourteen days from the date of receipt of settlement, and the

Court shall record settlement if it is not collusive.

2. The Court shall then pass a lawful decree in accordance with settlement so

recorded if settlement disposes of all the issues in the suit.

3. If settlement disposes of only certain issues arising in the suit, the Court shall

record settlement on the date fixed for recording settlement and

(i) If the issues are servable from other issues and if a decree could be passed to

the extent of settlement covered by those issues, the Court may pass a decree

straightaway in accordance with settlement on those issues without waiting

for a decision of the Court on the other issues which are not settled.

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(ii) If the issues are not servable, the Court shall wait for a decision of the Court

on the other issues which are not settled.

Rule 26: Fee of mediator and costs:

1. At the time of referring the disputes to mediation, the Court shall, after

consulting the mediator and the parties, fix the fee of the mediator.

2. As far as possible a consolidated sum may be fixed rather than for each session

or meeting.

3. Where there are two mediators as in clause (b) of Rule 2, the -Court shall fix

the fee payable to the mediators which shall be shared equally by the two sets

of parties.

4. The expense of the mediation including the fee of the mediator, costs of

administrative assistance, and other ancillary expenses concerned, shall be

borne equally by the various contesting parties or as may be otherwise directed

by the Court.

5. Each party shall bear the costs for production of witnesses on his side including

experts, or for production of documents.

6. The mediator may, before the commencement of mediation, direct the parties

to deposit equal sums, tentatively, to the extent of 40% of the probable costs of

the mediation as referred to in clauses (1), (3) and (4). The remaining 60% shall

be deposited with the mediator, after the conclusion of mediation. For the

amount of cost paid to the mediator, he shall issue the necessary receipts and a

statement of account shall be filed, by the mediator in the Court.

7. The expense of mediation including fee, if not paid by the parties, the Court

shall, on the application of the mediator or parties, direct the concerned parties

to pay, and if they do not pay, the Court shall recover the said amounts as if

there was a decree for the said amount

8. Where a party is entitled to legal aid under section 12 of the Legal Services

Authority Act, 1987, the amount of fee payable to the mediator and costs shall

be paid by the concerned Legal Services Authority under that Act.

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Rule 27: Ethics to be followed by the mediator

The mediator shall:

(1) follow and observe these Rules strictly and with due diligence;

(2) not carry on any activity or conduct which could reasonably be considered as

conduct unbecoming of a mediator;

(3) uphold the integrity and fairness of the mediation process;

(4) ensure that the parties involved in the mediation are fairly informed and have

an adequate understanding. of the procedural aspects of the process;

(5) satisfy himself/herself that he/she is qualified to undertake and complete the

assignment in a professional manner;

(6) disclose any interest or relationship likely to affect impartiality or which might

seek an appearance of partiality or bias;

(7) avoid, while communicating with the parties, any impropriety or appearance of

impropriety;

(8) be faithful to the relationship of trust and confidentiality imposed in the office

of the mediator;

(9) conduct all proceedings related to the resolutions of a dispute, in accordance

with the applicable law;

(10) recognize that mediation is based on principles of self-determination by the

parties and that mediation process relies upon the ability of parties to reach a

voluntary, undisclosed agreement;

(11) maintain the reasonable expectations of the parties as to confidentiality;

(12) refrain from promises or guarantees of results.

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Rule 28: Transitory provisions

Until a panel of mediators is prepared by the High Court and the District Court, the

Courts referred to in Rule 3, may nominate a mediator of their choice if the mediator

belongs to any of the classes of persons referred to in Rule 4 (and is not disqualified

under Rule 5) taking into account the suitability of the mediator, for resolving the

particular dispute.133

133 Mediation Centre Guidelines' (Gujarathighcourt.nic.in) <http://gujarathighcourt.nic.in/mcguide> accessed 23 August 2019

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Part B

Draft referral order

In the Court of Hon'ble

Court Case No .........of

Applicant/Plaintiff/Appellant/Complainant

v/s

Opponent/Defendant/Respondent/Accused

DRAFT REFERRAL ORDER

Upon going through the record of the case and further considering the facts and

circumstances of the case, it appears to this Court that there exist elements of a

settlement which may be acceptable to the parties. Therefore, in the exercise of powers

conferred u/s 89 of CPC, 1908, I refer this case for exploring the possibilities of

settlement through Mediation, on the following conditions: -

1) Parties to the list and their advocates/attorneys shall remain present along with

the necessary case papers before the Mediation Centre, District Court Building

at ....a.m/p.m on 00/00/20...

2) Mediation process/proceeding shall be conducted by the MCPC Trained

Mediator. In a Court annexed mediation, the coordinator of the mediation

Centre shall appoint the mediator as he may deem fit.

3) In case of failure of resolution of the referred dispute, the Mediator shall inform

the Mediation Centre, by a report, only stating that MEDIATION HAS BEEN

UNSUCCESSFUL and the Co-ordinator of the Mediation Centre shall inform

the same to this Court.

4) When an agreement is reached between the parties with regard to all the issues

in the suit or proceeding or some of the issues, the same shall be reduced to

writing and signed by the parties or their constituted attorney/s, and counsel/s,

if any.

5) The agreement of the parties so signed shall be submitted to the co-ordinator,

134913/2019/NM503

- 171 -

Mediation Centre, who shall, with a covering letter signed by him forward the

same to this Court.

6) On the expiry of 90 from the date fixed for the first appearance of the parties

before the mediator, the mediation shall stand terminated, unless this Court,

either suo moto, or upon request by any of the parties, and upon hearing all the

parties, is of the view that extension of time is necessary or maybe useful; but

such extension shall not be beyond a further period of thirty days.

7) Next date of formal hearing is fixed on 00/00/20.. (to check the progress of the

mediation)

8) Photo Copy of pleadings shall be forwarded to Mediation Centre, forthwith.

Place: Name and Designation

Date:

134913/2019/NM504

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Annexure-IV

Statistics on Lok Adalat and Mediation conducted in the state of Gujarat

Part A

Statement Showing Details Of Lok Adalat & Legal Literacy Camp Held In

Gujarat State

(Up to January -2017)

SR.

NO.

PARTICULARS MARCH

1982 TO

1997

TOTAL

OF

1998 to

2009

TOTAL

OF

2010

TOTAL

OF

2011

TOTAL

OF

2012

TOTAL

OF

2013

TOTAL

OF 2014

TOTAL

OF

2015

TOTAL

OF

2016

Jan'17 TOTAL GRAND

TOTAL

1 L.A. HELD

(G.L.A + C.L.A) 1470 93678 9478 9741 9736 10068 10783 12138 15620 715 173427

183534

MACT L.A.

HELD 484 3907 462 525 675 921 1056 990 1034 53 10107

2 CASES DEALT

WITH (G.L.A. +

C.L.A)

251388 6269115 649388 552727 289316 396023 569529 433207 654396 13809 10078898

10341528

MACT C.D.W. 44643 132444 15825 11069 11488 1 14788 14176 18017 179 262630

3 CASES

DISPOSED OF

(G.L.A.+C.L.A)

198140 5037808 428110 357535 168432 212432 363219 163449 222667 3879 7155671

7334325

MACT CASES

DISPOSED OF 32874 84953 7379 7543 5765 10929 11022 8914 9131 144 178654

4 AWARDED

MACT (RS. IN

CRORES)

113.2 568.17 66.55 101.26 67.19 139.94 163.62 151.08 169.98 2.58 1544 8331

5 OTHER COMP.

(RS. (N

CRORES)

0 3173.58 239.17 450.99 424.05 410.22 748.82 721.29 593.35 25.83 6787

6 L.L.C. HELD 601 347450 10858 8057 7064 7001 9191 8418 7782 454 406876 406876

134913/2019/NM505

- 173 -

Part B

Statement Showing The Details of The Matters To All ADR/Mediation Centres

in The State Ending 31/03/2017 Since Its Establishment

Name of mediation centres Referred Settled Non starters Unsettled Pending

Gujarat High Court Mediation Centre (established on 23/12/2008) 1251 263 159 802 27

Ahmedabad City Civil Court Mediation Centre (established on 24/12/08) 881 236 2 622 21

Family Court Mediation Centre, Ahmedabad (established on 01/05/09) 716 135 216 321 44

Anand ADR Centre (established on 31/07/11) 742 100 102 527 13

Banaskantha @ Palanpur ADR Centre (established on

17/04/13) 860 204 194 439 23

Bharuch ADR Centre (established on 10/12/11) 296 57 15 202 22

Dahod ADR Centre (established on 18/03/12) 454 46 0 392 16

Dang @ Ahwa Mediation Centre (established on 19/08/11) 2 0 0 2 0

Junagadh ADR Centre (established on 06/10/12) 319 48 51 195 25

Jamnagar Mediation Centre (established on 09/05/09) 1070 102 94 832 42

Kachchh Mediation Centre (established on 01/04/12) 1051 208 51 749 43

Kheda @ Nadiad Mediation Centre (established on 31/07/11) 326 40 2 262 22

Mehsana ADR Centre (established on 20/6/2015) 591 156 195 225 15

Navsari Mediation Centre (established on 18/08/11) 61 8 8 41 4

134913/2019/NM506

- 174 -

Panchmahal @ Godhara ADR Centre (established on 04/03/12) 515 108 59 264 84

Patan Mediation Centre (established on 31/07/11) 490 110 150 167 63

Rajkot ADR. Centre (established on 04/07/2015) 2570 485 63 1787 235

Surendranagar Mediation Centre (established on 30/06/12) 673 175 0 467 31

Surat ADR Centre (established on 26/07/2014) 2723 580 40 2008 95

Vadodara Mediation Centre (established on 31/07/11) 708 86 6 502 114

Valsad ADR Centre (established on 07/04/2013) 252 44 19 123 66

Porbandar ADR Centre (established on 04-08-2013) 199 26 21 138 14

Chief Metro Magistrats Court Mediation Centre (established on 25-04-2014) 253 52 38 131 32

Amreli ADR Centre (established on 01-05-2016) 251 19 79 136 17

Ahmedabad (Rural) District Mediation Centre (established on 10.12.2016 197 17 7 43 130

Total 17451 3305 1571 11377 1198

134913/2019/NM507

- 175 -

REFERENCE

Acts

Legal Services Authorities Act, 1987

Arbitration and Conciliation Act of 1996

Civil Procedure Code, 1908

UNCITRAL Model Law on Arbitration, 1985

UNCITRAL Conciliation rules,1980

THE COMMERCIAL COURTS, COMMERCIAL DIVISION AND COMMERCIAL APPELLATE

DIVISION OF HIGH COURTS (AMENDMENT) ACT, 2018 SECTION 12A(1).

Rules

Model Mediation rules 2005

Mediation and Conciliation Project Committee, Mediation Manual of India 2010

available at

https://www.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf.

Handbook on Mediation, Himachal Pradesh High Court, 2014 available at

https://hphighcourt.nic.in/pdf/handbookonmediation2014.pdfhttp://sonitpurjudiciary.

gov.in/DLSA/Act,s%20&%20Rule/Mediation_and_Concillation_Project_Committe0

001.pdf

Reports

Law Commission of India, 77th Report on Delay and Areas in Trial Courts 1978.

Law Commission of India, 129th Report on “Urban Legislation Mediation As

Alternative To Adjudication”.

Law Commission of India, 238th report on Amendment of Section 89 of the Code of

Civil Procedure, 1908 and Allied Provisions, 2011

High Court of Gujarat, Annual Report, 2018. Available at

http://gujarathighcourt.nic.in/annualreport

134913/2019/NM508

https://www.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf

- 176 -

Books

Henry J. Brown and Arthur L. Mariot, ADR Principles and PrAct,ice 2nd Ed, Sweet

& Maxwell, 1997, p 127.

Stephen B. Goldberg, Frank E.A. Sander Rd, and Nancy H. Rogers, Dispute

Resolution: Negotiation Mediation and Other Processes (Aspen Casebook) 6th

Edition, Aspine Law & Business, Gaithesburg and New York, 1999, p. 123.

Panchu, Sriram, Settle for More (1st edn, Chennai [India]: East West Books (Madras)

Pvt Ltd 2007).

Malhotra, Indu Malhotra, The Law and PrAct,ice of Arbitration and Conciliation (2nd

ed, Lexis Nexis, 2006.

Jenkins, Jane, and Simon Stebbings. International Construction Arbitration Law

(1stedn, Alphen an den Rijn: Kluwer Law International 2006).

George J. Siedel, Negotiating for Success: Essential Strategies and Skills, Van Rye

Publishing, LLC, 2014

Articles

Justice M. Jagannadha Rao, Concepts Of Conciliation And Mediation And Their

Differences. available at

http://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20Rao%201.pdf

Justice Jitendra N Bhatt, ‘A Round Table Justice through Lok-Adalat (Peoples’ Court)

- A Vibrant ADR in India’ (2001 (3) Gujarat Law Herald Journal 13.

134913/2019/NM509

http://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20Rao%201.pdf

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