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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.
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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 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
Gujarat National Law University, Gujarat, India

Ms Heena Goswami
Assistant Professor of Science and Technology
Gujarat National Law University, Gujarat, India
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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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iii

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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[Link] Differences between courts annexed mediation and 18

private mediation

[Link] Difference between Conciliation and Mediation 19

2.2.4 Lok Adalat 21

2.2.5 Permanent Lok Adalat 31

[Link] 34
Difference between Lok Adalat and Permanent Lok
Adalat

3. SALIENT FEATURES OF SECTION 89 OF CIVIL PROCEDURE 37-54

CODE

3.1 History of section 89 of CPC 38

3.2 Mandatory ADR referral of disputes and its usage in 39

various countries

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 43

and recording of the settlement:

3.4.2 Court’s obligation under section 89 of CPC and 46

mandatory referral of the dispute to any form of ADR

3.4.3 Deciding and referring appropriate ADR for the 47

resolution of the Dispute

3.4.4 There is no clear-cut definition/explanation about 48

different types of ADRs and their referral process

[Link] Arbitration 49

[Link] Conciliation 49

[Link] Mediation 50

[Link].1 Role of court annexed mediation in section 89 referral 51

[Link] Lok Adalat 52

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[Link] Judicial settlement 53

3.4.5 Inclusion of another new form of ADR 54

[Link] Dispute Adjudication Board and Dispute Review Board 54

[Link] Early Neutral Evaluation 55

[Link] Ministerial/Executive tribunal 55

[Link] Expert determination 55

[Link] ODR 56

3.5 Proposed amendment in the section 89 of CPC 57

3.6 Comprehensive road map for the role of the presiding 58

judge under section 89 of CPC

4. ANALYSIS OF THE IMPLEMENTATION OF SECTION 89 OF 59 - 136

CPC IN THE STATE OF GUJARAT

4.1 Judicial system and ADR institutions in the state of 60

Gujarat

4.2 Mindset of the stakeholders on the implementation of 65

section 89 in the state of Gujarat

4.2.1 Data Analysis and Interpretation of Litigants 66

[Link] Broader Analysis of the Respondents 67

[Link] Respondent’s Education across the districts 67

[Link] Occupation of Respondent 69

[Link] Nature of dispute 70

[Link] Time duration of the Cases 72

[Link] Nature of Dispute with time duration 72

[Link] Nature of Dispute based on the District with time 73

duration

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[Link] Analysis Related to ADR awareness 76

[Link].1 Reason of filing the Case 77

[Link].2 Statistics related to the opinion of the litigants about the 78

Current Court System

[Link].3 Reason for non-satisfaction 80

[Link].4 Awareness about the ADR System 81

[Link].4.1 Willingness to resolve their dispute through ADR 82

[Link].4.2 Suggested about ADR system or not 83

[Link].3 Form of ADR 85

[Link].4 Knowledge About the ADR 87

[Link].5 Knowledge on Lok Adalat 88

[Link].6 Knowledge on Mediation 89

[Link].7 Knowledge on Arbitration 89

[Link].8 Knowledge on Conciliation 90

4.2.2 Data Interpretation and Analysis of Advocates 91

[Link] Basic Analysis of the Respondents 92

[Link] Experience of Advocates 93

[Link] District wise Nature of Dispute handled by advocates 95

[Link] Time duration of the Cases 96

[Link] Nature of Dispute with time duration 97

[Link] Nature of Dispute based on the District with time 99

duration

[Link] Advocates perspective on the ADR System 103

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[Link].1 Causes to bring the Case in Court 104

[Link].2 Satisfaction with Current Court System 104

[Link].3 Causes of dissatisfaction 108

[Link].4 Suggesting the ADR System to the Litigants 110

[Link].4.1 Suggested about the ADR system 110

[Link].4.2 Form of ADR 115

[Link].4.3 Number of advocates who got training in Mediation 117

[Link] Overall satisfaction of Trial Court’s approach on section 117

89 referral

4.4 Testing of hypothesis 128

4.4.1 Hypothesis 1: Litigants are not fully aware about the 129
ADR System

4.4.2 Hypothesis II: Neither Advocates nor the Judges 136

explained about the ADR system

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 154-155

Recommendations on the Amendment of Section 89 of
CPC

Annexure- III High Court of Gujarat Instruments on the 156-169

implementation of section 89 of CPC

Part A-Civil Procedure Mediation (Gujarat) Draft Rules, 156

2007

Part B-Draft referral order 171

Annexure- IV Statistics on Lok Adalat and Mediation conducted in the 172-174

state of Gujarat

Part A-Statement Showing Details Of Lok Adalat & 172

Legal Literacy Camp Held In Gujarat State (Up to
January -2017)

Part B- Statement Showing The Details Of The Matters 173

To All Adr/Mediation Centres In The State Ending
31/03/2017 Since Its Establishment

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

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 & 56

Criminal Cases for the Period: 01/01/2018 to 31/12/2018
(excluding High Court)1

1 High Court of Gujarat, Annual Report, 2018. Available at [Link]

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Table-2 Number of Lok Adalats Held and Cases Settled by State 57

Legal Services Authorities (other than National Lok
Adalats) (April,2017 to March, 2018)

Table-3 The Number of Lok Adalats Held by State Legal Services 58

Authorities Under Legal Services Authorities Act 1987
And Cases Settled Since Inception (As On 30.06.2017)

Table-4 Number of Lok Adalats conducted and number of disposed 59

of in the state of Gujarat from 1982 to 2018

Table-5 Permanent Lok Adalats (Established u/s 22-B of LSA Act) 60

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

Table-6 Details of The Matters Referred to All ADR/Mediation 61

Centers in the State of Gujarat from 2012 to 2018
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 76

current court system.

Table-14 District-wise* reasons for dissatisfaction on the current 78

court system

Table-15 District * whether the judge has asked you to resolve your 82
dispute through ADR or not

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

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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 105

System across the districts

Table-28 Reasons for the dissatisfaction on the court system by the 108
advocates

Table-29 Clients reaction on the ADR options given by the 111

advocates

Table-30 District * Whether the judge has asked you to resolve your 113
client’s dispute to resolve your dispute through ADR or
not

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 118

89 referral

Table-34 Suggestion from The Advocates to Implement ADR 120

Referral Under Section 89

Table-35 Feel Improvement is required to Aid the Prompt Disposal 122

of Cases

Table-36 Chi-Square TestsLitigants are not fully aware about the 128
ADR System

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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 134

explained about the ADR system
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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 60

of in the state of Gujarat from 2010 to 2018

Figure-2 Educational Qualification 66

Figure-3 Education wise Respondents across the districts 66
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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 76
cross tabulation

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 80
ADR Systme
Figure- 14 District wise whether anybody has been suggested about 81
this
ADR system or not
Figure-15 Whether the Judge has asked to resolve the dispute through 82
ADR or not.

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 113
their dispute by Advocates

Figure-28 Reaction of clients relating to ADR System 115

Figure-29 Whether the Judge has asked you to resolve your client’s 116
dispute through ADR
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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 122
89 referral
Figure-33 Suggestion from The Advocates to Implement ADR 123
Referral
Under Section 89
Figure-34 Suggested the litigants for resolving their dispute through 123
any form of ADR

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

Figure-36 Form of ADR suggested in Most of the times for the 124
resolution of the disputes

Figure-37 Form of ADR suggested in Most of the times for the 125
resolution of the disputes

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 127
CPC

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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
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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
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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.
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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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xix
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, minitrial 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.

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

xx
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

1
I. INTRODUCTION

- -
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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.2 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

2 'National Judicial Data Grid (District and Taluka Courts of India)' (NJDG, 2019)
<[Link] accessed 20
August 2019.
- -
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2
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 [Link] 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 2002 3
and it has come in to force on July 1 st, 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.4

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. 5 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

3 Paper T, 'CPC Amendments Take Effect From July 1' (The Hindu, 2019)
<[Link] accessed 22 August
2019.
4 Civil Procedure Code (Amendment) Act 1999, s 89.
5 Salem Advocate Bar Association v Union of India, AIR [2003] SC 189.

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

3
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.6

In Afcons Infrastructure Ltd. vs. Cherian Varkey Construction Co. (P) LTD,7 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.

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

4
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.);
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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

5
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.

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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.8

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

6
knowledge about conciliation and negotiation.9 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.10

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

8 Justice S.U. Khan, 'Judicial Settlement Under Section 89 C.P.C. A Neglected Aspect'
([Link]) <[Link] accessed 23 August 2019.
9 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)
<[Link]
accessed 22 August 2019.
10 Ibid.
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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.11

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

7
court-annexed mediation centers have not kept mediation data with the proper
classification of the nature of the disputes.12

Hence, our research team felt that before conducting a systematic review of section
89 implementation as emphasized by Justice [Link], there must be a study on
behavioural aspects of the stakeholders who are playing a pivotal role in the

11 Ibid.
12 Alok Prasanna Kumar and others, 'STRENGTHENING MEDIATION IN INDIA A Report
On Court-Connected Mediations' (Vidhi Centre for Legal Policy 2016)
<[Link]
%20Legal%[Link]> accessed 16 August 2019.
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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 courtannexed 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

8
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
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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

9
implementation of section 89 of CPC.

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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.

10
Data collection:
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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).

11

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CHAPTER - II

HISTORY AND DEVELOPMENT OF ADR

IN INDIA

12
CHAPTER - II

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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 Gandhi13

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 traderelated 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.

13 Gandhi and Mahadev H Desai, An Autobiography, [Or], The Story Of My Experiments

With Truth (Prakash Books 2009).

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13
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

O. P Malhotra, The Law and Practice of Arbitration and Conciliation (2nd edn,
13

LexisNexis 2006).
14
'Evolution Of Arbitration In India - Litigation, Mediation & Arbitration - India'
([Link], 2016)
<[Link]
bitration+In+India> accessed 7 August 2019.
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14
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.

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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,

15
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.14

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.15 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 4 th,
1980. India is one of the signatories to these rules. Hence, it has an obligation to
incorporate the same in its domestic legislation.16

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
14 ([Link])
<[Link] accessed
22 August 2019.
15 '77Th Report on Delay and Arears in Trial Courts 1978' (LAW COMMISSION OF INDIA
2014) <[Link] accessed 22 August 2019.
16 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (UNCITRAL)
UNCITRAL Conciliation Rules
[Link]
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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

16
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.17

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.18&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

17 'Urban Litigation: Mediation As Alternative To Adjudication' (LAW COMMISSION OF

INDIA 1998) <[Link] accessed 12
August 2019.
18 Ibid.
20
Ibid.
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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.19

17
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

19 Mediation Training Manual Of India (Mediation and Conciliation Project Committee

Supreme Court of India, Delhi) <[Link]
%20MANUAL%20OF%[Link]> accessed 12 August 2019.

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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.20

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

18
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.21

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

20 Ibid.
21
[Link]
oject_Committe0001.pdf
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which have been referred from his own court. Further, the “mediation judge” cannot
hear the same dispute in the judicial proceedings in the future.22

[Link] Differences between court-annexed mediation and private mediation

Court annexed mediation Private mediation

The court shall provide the The private person provides the service
mediation services

It is considered as part and It is not considered as part of the judicial

parcel of the judicial system. system.

The mediators may be a judicial Any person can be a private mediator.

officer or an advocate.

The mediator must have The mediator might have completed mediation
completed MCPC training. training from any renowned institution.25

[Link] Difference between Conciliation and Mediation:

19
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.”23

22 Hand book on Mediation, Himachal Pradesh High Court, 2014 available at

[Link]
LSA/Act,s%20&%20Rule/Mediation_and_Concillation_Project_Committe0001.pdf
25
Mediation and Conciliation Project Committee, Mediation Manual of India 2010 available
at [Link]
23 Industrial Disputes Act, 1947, s 4(1).
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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.”24

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.”25

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. 26 He further stated that in the
USA, the Conciliator cannot be a proactive role for the resolution whereas, the
mediator plays such a role.27 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. 28 Our research team has agreed to the view of Justice
Jagannadha Rao’s interpretation of the term “Conciliation”.

24 Henry J Brown and Arthur L Marriott, ADR Principles and Practice (2nd edn, Sweet &
Maxwell 1997).
25 Stephen B Goldberg and others, Dispute Resolution (Aspen Publishers 2014).
26 Justice M. Jagannadha Rao, 'CONCEPTS OF CONCILIATION AND MEDIATION AND
THEIR DIFFERENCES' ([Link])
<[Link] accessed
23 August 2019.
27 Ibid.
28 Ibid.
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20
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.29 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.30

Similarly, The Family Courts Act also encourages the resolution of the matrimonial
dispute through conciliation and mediation. 31 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. 32 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.33

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

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

29 The Hindu Marriage Act 1955, s 23(2).

30 The Hindu Marriage Act 1955, s 23(2) proviso.
31 The 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.
32 The Family Courts Act 1984, s 9.
33 The Family Courts Act, 1984 s 19.
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21
of the suit except there is a requirement of urgent relief from the court. 34 The central
government has been given the powers to make rules relating to pre-initiation
mediation.35 The mediation commenced under this Act should be concluded within 3
months from the date of the mediation application filed by the plaintiff. 36 The
duration of the mediation period may be extended further two months with the
consent of the parties.37 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.38 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.39 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.40

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.41

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

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

High
Courts (Amendment) Act 2018 s 12 A (1).
35 The Commercial Courts, Commercial Division and Commercial Appellate Division of
High
Courts (Amendment) Act, 2018 s12 A (2).
36 The Commercial Courts, Commercial Division and Commercial Appellate Division of
High Courts (Amendment) Act, 2018 s 12 A (3).
37 The Commercial Courts, Commercial Division and Commercial Appellate Division of
High Courts (Amendment) Act, 2018 s 12 A (4).
38 Ibid.
39 The Commercial Courts, Commercial Division and Commercial Appellate Division of
High Courts (Amendment) Act, 2018 s 12 A (5).
40 The Commercial Courts, Commercial Division And Commercial Appellate Division of
High Courts (Amendment) Act, 2018 s 12 A (3) 2nd proviso.
41 Constitution of India, Article 39A.

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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'.

22
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
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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.42

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

23
judge or retired judge) and other members (who has experience in the legal field or
who is a social activist). 43 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.44 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.45

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

42 'United India Insurance Co. Ltd Vs Ajay Sinha & Anr on 13 May, 2008'
([Link]) <[Link] accessed 23 August 2019. 46
Legal Services Authorities Act, 1987 s 19(1).
43 Legal Services Authorities Act, 1987 s 19(2).
44 Legal Services Authorities Act, 1987 s 19(5).
45 Legal Services Authorities Act, 1987 s 20(1).
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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.46 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.47 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.48

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,-

24
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.,49 Karnataka High Court had given the
affirmative answer to these questions in the following words,-

46 Legal Services Authorities Act, 1987 s 20(3).

51
Legal Services Authorities Act, 1985 s 21.
47 Legal Services Authorities Act, 1987 s 20(5).
48 Legal Services Authorities Act, 1987 s 20(6).
49 'H V Venkatesh Vs Oriental Insurance Company Limited And Ors - Citation 374947 -
Court Judgment Legalcrystal' ([Link])
<[Link] accessed 23
August 2019.
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“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.”50

In Punjab National Bank v. Lakshmichand Rai,51 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

25

50 Ibid.
51 AIR 2000 MP 301.
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89 of CPC.”52 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, 53 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, 54 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

52 Ibid.
58
Ibid.
53 Kamal Mehta v General Manager, Rajasthan Roadways Transport Corporation and Anr.,
FAO No. 798 of 1999.
54 Parmod v Jagbir Singh And Ors, [2003] 133 PLR 365.
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compromise or settlement is signed by the parties and the order of the Lok Adalat
does not refer to any settlement. But directs

26
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.”55

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.56

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 Reddy57 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

55 State of Punjab & Anr. v Jalour Singh &Ors [2008] 2 SCC 660.
56 Ibid.
57 Bharvagi Constructions & Anr v Kothakapu Muthyam Reddy & Ors. (Civil Appeal
No.11345 OF 2017).

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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

27
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.58

58 Smt. Soni Kumari v Sri Akhand Pratap Sing, Allahabad HC, 2018 available at
[Link]
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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?

28
In K.N. Govindan Kutty Menon vs C.D. Shaji,59 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

59 K.N. Govindan Kutty Menon v C.D. Shaji, SC, 2011. Available at Indian Kanoon -
[Link] 1.
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a special leave petition. Supreme Court directed the Munsif Court (execution court)
to execution petition and proceed further.60

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.61

29
In M/s Valarmathi Oil Industries & Anr. vs. M/s Saradhi Ginning Factory,62
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

60 Ibid.
61 Subhash Narasappa Mangrule (M/S) and Others v Sidramappa Jagdevappa Unnad, [2009]
(3) Mh.L.J. 857.
62 M/s Valarmathi Oil Industries & Anr. v M/s Saradhi Ginning Factory, AIR [2009] Madras
180.
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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.63

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.,64 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

30

63 Ibid.
64 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.65 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.66 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.67

65 [Link]
66 [Link]
67 [Link]
%20
NUMBER%20OF%20LOK%20ADALATS%20HELD%20BY%20STATE%20LEGAL%20
SERVICES%20AUTHORITIES%20UNDER%20LEGAL%20SERVICES%20AUTHORITI
ES%20ACT,%201987%20AND%20CASES%20SETTLED%20SINCE%20INCEPTION%2
0(AS%20ON%2030.06.2017)..pdf
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31
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.”68

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.69

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

68 Rebecca Furtado, 'Permanent Lok Adalats- A Critical Study - Ipleaders' (iPleaders, 2016)
<[Link] accessed 23 August 2019.
69 Legal Services Authorities Act 1987 s 22A(b) and 22B(1).
76
Legal Services Authorities Act 1987 s 22B.
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notified by the government. Whenever a dispute is brought before the Lok Adalat,
the

32
other forum cannot hear the same case until the time Lok Adalat complete its
proceedings.70 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. 71
Permanent
Lok Adalat’s award is considered as a decree of the court and it is final and binding
upon the parties.72 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.73

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”.74

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.

70 Legal Services Authorities Act 1987 s 22C (1).

78
Ibid.
71 Legal Services Authorities Act 1987 s 22C (8).
72 Legal Services Authorities Act 1987 s 22E.
73 [Link]
74 United India Insurance Co. Ltd v Ajay Sinha and another, (SC) 2008. Available at
[Link]
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Hence contractual exclusive jurisdiction clause does not bar the Permanent Lok
Adalat to hear the dispute.75

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.

33
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
nonjudicial 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.76

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.

75 Inter Globe Aviation Ltd v. N. Satchidanand, [2011] 7 SCC 463.

76 'Bar Council of India Vs Union of India on 3 August, 2012' ([Link])
<[Link] accessed 23 August 2019.
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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

34
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.”77

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.78 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

77 'S.N Pandey V. Union Of India And Another | Writ Petition (C) No. 543 Of 2002 |
Judgment
| Law | Casemine' ([Link])
<[Link] accessed 23 August
2019.
78 Justice K.A. Abdul Gafoor, 'Eastern Book Company - Practical Lawyer' ([Link])
<[Link] accessed 23 August 2019. 87
'United India Insurance [Link] Vs Ajay Sinha & Anr On 13 May, 2008' ([Link])
<[Link] accessed 23 August 2019. 88 Supra note 83.
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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

35
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

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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.

[Link] 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 It can hear all civil disputes It can hear only public utility
and other disputes except services related to disputes.
disputes
disputes on non-
compoundable fence.

Pecuniary limit It can hear dispute which is

It can hear the public utility
civil and compoundable in services related disputes if
nature irrespective of the value of the claim is of
INR 10 Lakh and below.
pecuniary value of the dispute

Decision It can only pass an award on It can pass an award on the

making the basis of settlement made merits of the dispute if the
by the parties. conciliation fails.

The finality of
The award passed by the Lok The aggrieved party can
the award
Adalat is final and binding the challenge the award of
parties. In general, it cannot be permanent Lok Adalat in
challenged. courts.

36

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CHAPTER III

SALIENT FEATURES OF SECTION 89 OF

CIVIL PROCEDURE CODE

37
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

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waste of time. As a peace-maker, the lawyer has a superior opportunity of being

a good person.”

Abraham Lincoln79

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. 80 The
Parliamentary Standing Committee on Home Affairs in its 49th Report (1998),

38

79 'Abraham Lincoln's Notes For A Law Lecture' ([Link])

<[Link] accessed 23 August
2019.
80 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)
<[Link] accessed 23 August 2019.\
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accepted the proposal for the referral of pending disputes to arbitration, conciliation,
mediation, and judicial settlement.8182&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.”83
81 Ibid.
82 th Report Law’s Delays: Arrears In Courts Parliamentary Standing Committee on Home
Affairs, 2001.
83 'H V Venkatesh Vs Oriental Insurance Company Limited And Ors - Citation 374947 -
Court Judgment | Legalcrystal' ([Link])
<[Link] accessed 23
August 2019.
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39
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. 84
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).85 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.86

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

84 T. B. MAIYAKI and ROBERT UDUAK V, Adr: An Appropriate Substitute To Litigation

In
The 21st Century. Available at
[Link]
GATION_IN_THE_21_ST_CENTURY.
85 Aditi Bhargava, Conciliation: An Effective Mode Of Alternative Dispute Resolution
System. Available at
[Link]
86 Shantha Chellapa and Tara Ollapally, 'A Boost To Effective And Efficient Dispute
Resolution In India -Bar & Bench' (Bar & Bench, 2018)
<[Link] accessed 23 August
2019.
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give them to the parties for their observations and after receiving the observations of
the

40
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

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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.

41
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.
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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.87
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

42
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

87 ‘M/S. Afcons Infra. Ltd. & Anr v M/S Cherian Varkey Constn ... On 26 July, 2010'
([Link]) <[Link] accessed 23 August 2019.
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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.”88

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.

43
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

88 Salem Advocate Bar Association, T.N. v Union of India [2005] 6 SCC 344.
99
Arbitration and Conciliation Act 1996 s 73.
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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 238 th 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
nonadjudicatory 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

44
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

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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.”89

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

45
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.
89 Supra note 98.
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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.

46
However, in case of a referral of the dispute to Conciliation then, the court can refer
the dispute upon the consent of the parties.90

90 Supra note 97.

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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.

[Link] Arbitration:

If the dispute is been referred under section 89 then, the entire arbitration process will
be governed by the Arbitration and Conciliation Act. 91 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

91 Civil Procedure Code 1908 s 89(2) (a).

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47
therein, there cannot be a reference to arbitration even under Section 89 CPC, unless
there is mutual consent of all parties, for such reference.”92

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.93

[Link] 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.94 Supreme Court held that If the court decides to refer the dispute to
Conciliation then, the consent of the parties is necessary.95 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. 96 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.

[Link] 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
92 Jagdish Chander v Ramesh Chander [2007] (5) SCC 719.
93 Supra note 97.
94 Supra note 102.
95 Supra note 97.
96 Supra note 90.
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48

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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.97

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.98

The Supreme Court stated that in complex cases, mediation is the better option than
Lok Adalat or Judicial settlement.99 In this juncture, we may look at the recently

97 Supra note 97.

98 '238Th Report On Amendment Of Section 89 Of The Code Of Civil Procedure,’
([Link])
<[Link]
t> accessed 23 August 2019.
99 note 97.
Supra

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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.

49
[Link].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.”100

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

100 'Mediation Training Manual Of India' ([Link]) <[Link]

%20MANUAL%20OF%[Link]> accessed 23 August 2019.
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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

50
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.”101

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.

[Link] 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.102&103

101 'Moti Ram(D) [Link].& Anr Vs Ashok Kumar & Anr On 7 December, 2010'
([Link]) <[Link] accessed 23 August 2019. 113
Supra note 102.
102 Supra note 97.
103 note 97.
Supra

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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

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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.”104

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.105

[Link] 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.106 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,107 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

104 Supra note 90.

105 Naeemullah Azeem, 'Compromise Decree: A Detailed Overview'
([Link]) <[Link]
[Link]> accessed 23 August 2019.
106 Justice S.U. Khan, 'Judicial Settlement Under Section 89 C.P.C. A Neglected Aspect'
([Link]) <[Link] accessed 23 August 2019.
107 note 97.
Supra

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52
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.”108

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. 109 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.

108 Supra note 118.

109 note 90.
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53
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.

[Link] 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. 110 The
Chartered Institute of Arbitrators has framed Disputes Board rules for providing DAB and
DRB services to the disputants.111

110 James Jenkins, International Construction Arbitration Law (2nd edn, Kluwer Law
International).
111 'Ciarb - Rules' ([Link]) <[Link] accessed 23 August
2019.
Supra

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[Link] 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.”112

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.113 In Bawa Masala case,114 the Supreme Court had asked the parties to
use ENA for the resolution of their dispute.

[Link] 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.

[Link] 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.115

112 'Bawa Masala Co. Vs Bawa Masala Co. Pvt. Ltd. And Anr. On 6 August, 2007'
([Link]) <[Link] accessed 23 August 2019.
113 Supra note 94.
114 Supra note 124.
115 'What Is Expert Determination?' ([Link])
<[Link] accessed 23 August
2019.
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55
[Link] 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
nonadjudicatory 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 written consent of the parties.

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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56
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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57
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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58

CHAPTER IV

ANALYSIS OF THE IMPLEMENTATION OF

SECTION 89 OF

CPC IN THE STATE OF GUJARAT

59
4.1 Judicial system and ADR institutions in the state of Gujarat
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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).116 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.117 As on April 2019, there are about 1532 cases
pending in commercial courts of Gujarat. 118 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

116 8([Link], 2018)

<[Link]
[Link]> accessed 23 August 2019.
117 'Welcome To NJDG - National Judicial Data Grid' ([Link])
<[Link] accessed 23
August 2019.
118 'Pendency, Institution, Disposal Of Cases Of Commercial Court For The Month April-
2019'
([Link], 2019)
<[Link]
urt_montlhy_april2019.pdf> accessed 23 August 2019. 131 Supra note 128.
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60
5 Subordinate 212704 58748 84341 187111
Courts
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 Taken up 56404 1953448
Cases Disposed of 3324 984512
Pending Cases Taken up 36171 1731245
in Courts
Disposed of 15750 944170
Total Taken up 92575 3684693
Disposed of 19074 1928682
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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61
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
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in Gujarat state and 1,76,196 cases (including 2,24,549 Motor Accident Claims)
cases got resolved in these Lok Adalats.

62
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 Number of Number of Cases
Adalat held Cases dealt with 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

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dealt with, in the year of 2010, the number was 649388 which increased up to
1037633.

63
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.

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Table: 5. Permanent Lok Adalats (Established u/s 22-B of LSA Act) For the
period w.e.f. April 2017 to March 2018

SLSA Gujarat India

PLAs Functioning 4 289

Sitting During the months 5 24842

64

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

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 Referred Settled Non- Unsettled Pending
the earlier Starters
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

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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

65
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

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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

66
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
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

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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

67
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.

[Link] 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.
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Table: 8. Region-wise distribution of the Sample

District

Valid Cumulative
Frequency Percent Percent Percent

Valid Mehsana 20 20.0 20.0 20.0

Rajkot 20 20.0 20.0 40.0

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20 20.0 20.0 60.0
Surat

20 20.0 20.0 80.0

Vadodara

20 20.0 20.0 100.0

Ahmedabad

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.

[Link] 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

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background has been categorized into four parts (i.e. primary, secondary, graduate,
and postgraduate) The figure is given illustrate the same.

69
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.

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Figure: 3. Education-wise Respondents across the districts

70
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.

[Link] 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:

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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

71
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.

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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.

[Link] 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.

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Figure: 6. Nature of dispute involved

Table: 9. Nature of dispute involved across the district

Count

Nature of dispute involved

Matrimonial Property Others Total

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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73
the capital of Gujarat and most the person is highly educated which they are not
willing to file a case or other issue.

[Link] 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

[Link] 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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74
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.

[Link] 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

Nature of dispute involved

District matrimonial property others Total

Mehsana Duration 0 - 2 years 5 2 5 12

2 - 5 years 0 3 4 7

more than 5 0 1 0 1
years

Total 5 6 9 20

Rajkot Duration 0 - 2 years 5 0 4 9

2 - 5 years 0 4 2 6

more than 5 0 5 0 5
years

Total 5 9 6 20

Surat Duration 0 - 2 years 3 0 8 11

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2 - 5 years 0 0 6 6

more than 5 0 3 0 3
years
75
Total 3 3 14 20

Vadodar Duration 0 - 2 years 4 0 8 12

a 2 - 5 years 1 3 2 6
more than 5 0 2 0 2
years

Total 5 5 10 20
Ahmedab Duration 0 - 2 years 6 2 5 13
ad 2 - 5 years 1 1 1 3
more than 5 0 3 1 4
years

Total 7 6 7 20
Total Duration 0 - 2 years 23 4 30 57
2 - 5 years 2 11 15 28
more than 5 0 14 1 15
years

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.

[Link] Analysis Related to ADR awareness:

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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.

76
[Link].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

Mehsana Rajkot Surat Vadodara Ahmedabad Total

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Why you No remedy 9 12 14 14 12 61

have filed is better
your case? than this

77
2 0 2 1 1 6
To seek
revenge

5 3 3 2 1 14
Inducement
from others

4 5 1 3 6 19
Other
reasons

20 20 20 20 20 100
Total

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

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No
remedy
is better To seek Inducement Other
than this revenge from others reasons

Primary 2 1 0 2 5

78

6 3 4 1 14
Secondary

48 2 10 14 74
Education Graduate
Qualification
5 0 0 2 7
Postgraduate
and above

61 6 14 19 100
Total
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.

[Link].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

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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

79
Valid Cumulative
Frequency Percent Percent 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
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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.

[Link].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,

80
delay, lengthy hearings, cost, time and all of the above. The figure given below
represents the same.
Figure: 1 1. 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

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If no, which is the primary reason makes you feel

dissatisfaction?

Lengthy All of the

Delay hearings Cost Time above Total

District Mehsana 3 6 1 1 5 16

81
1 2 0 0 5 8
Rajkot

2 1 2 0 10 15
Surat

1 1 1 0 4 7
Vadodara

1 1 0 1 6 9
Ahmedabad

8 11 4 2 30 55
Total

As the t able 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.

[Link].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.

[Link].4.1 Willingness to resolve their dispute through ADR

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The question has been framed to understand whether litigants also interested to adopt
this system or not. The figure represents the same.

82
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.

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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.

83
[Link].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

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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.

84
Figure: 15. Whether the Judge was asked to resolve the dispute through ADR or
not

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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?

No Yes Total

District Mehsana 7 13 20

Rajkot 8 12 20

Surat 12 8 20

85

8 12 20
Vadodara

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5 15 20
Ahmedabad

40 60 100
Total
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.

[Link].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?

Lok
Arbitration Mediation Conciliation Adalat Total

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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87
[Link].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: 1 7. 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.

[Link].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

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district is knowing about the Lok Adalat. Among these districts, the litigants from
Vadodara and Rajkot

88
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?

No Yes Total

District Mehsana 6 14 20

Rajkot 2 18 20

Surat 6 14 20

Vadodara 1 19 20

Ahmedabad 5 15 20

Total 20 80 100

[Link].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
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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

89
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?

No Yes Total

District Mehsana 6 14 20

Rajkot 7 13 20

Surat 11 9 20

Vadodara 6 14 20

Ahmedabad 7 13 20

Total 37 63 100

[Link].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
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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.

90
Table: 19. Knowledge of Arbitration

District * Knowledge on Arbitration Cross tabulation

Do you know what

arbitration is?

No Yes Total

District Mehsana 4 16 20

Rajkot 10 10 20

Surat 11 9 20

Vadodara 6 14 20

Ahmedabad 8 12 20

Total 39 61 100

[Link].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

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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.

91
Table: 20. District wise* knowledge of conciliation

District * knowledge of conciliation Cross tabulation

Do you know what

conciliation?

No Yes Total

District Mehsana 5 15 20

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
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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.

92
[Link] 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

Valid Cumulative
Frequency Percent Percent 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).

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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.

93
[Link] 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.

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Table: 22. District wise Professional experience of Advocates

District * Professional experience of Advocates Cross tabulation

Professional experience Total

94

0-5 5-10 10-15 15-20 20-25 25-30 30-35 35-40

years years years years years years years years

District 7 3 7 3 0 0 0 0 20
Mehsana

3 3 6 4 3 1 0 0 20
Rajkot

2 4 7 2 1 3 0 1 20
Surat

3 3 3 5 1 4 1 0 20
Vadodara

5 5 3 3 1 2 1 0 20
Ahmedabad

20 18 26 17 6 10 2 1 100
Total
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.

[Link] 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

Civ
Civil il
Civil
Civil & & Civil Contr
&
& Cri Fa & actual Cri
Consti
Arbitr Ci tunal Corp min mil Prop Disput min Matri Prop To
ation vil law orate al y erty e al monial erty tal

Mehsa 0 9 0 0 0 0 0 0 0 4 7 20
na

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 0 9 0 0 4 2 1 0 4 0 0 20
ara

Ahme 0 9 0 0 10 0 0 1 0 0 0 20
dabad

Total 1 53 1 1 23 3 1 1 4 4 8 10
0

[Link] 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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97
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

[Link] 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 propertyrelated 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

more than 5
0 - 2 years 2 - 5 years years Total

Nature of dispute Arbitration 1 0 0 1

handled

Civil 24 22 7 53

Civil & 1 0 0 1
Constitutional law

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 1 0 0 1
Dispute

Criminal 2 2 0 4

Matrimonial 0 3 1 4

99

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3 1 4 8
Property

46 38 16 100
Total

[Link] 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

Duration

more
0-2 2-5 than 5
District years years years Total

Mehsana Nature of Civil 5 2 2 9

dispute
handled
Matrimonial 0 3 1 4

Property 3 0 4 7

Total 8 5 7 20

mmmRajkot Arbitration 1 0 0 1
Nature of
dispute
handled
Civil 6 6 1 13

100

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1 2 1 4
Civil & Criminal

1 0 0 1
Civil & Family

0 1 0 1
Property

9 9 2 20
Total

Nature of 4 6 3 13
Surat Civil
dispute

handled 1 0 0 1
Civil
&Constitunal
law

0 0 1 1
Civil &
Corporate

3 2 0 5
Civil & Criminal

8 8 4 20
Total

Vadodara Nature of 5 4 0 9
Civil
dispute
handled
3 1 0 4
Civil & Criminal

2 0 0 2
Civil & Family

0 0 1 1
Civil & Property

2 2 0 4
Criminal
101

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12 7 1 20
Total

Ahmedabad Nature of 4 4 1 9
Civil
dispute
handled
4 5 1 10
Civil & Criminal

1 0 0 1
Contractual
Dispute

9 9 2 20
Total

Total Nature of 1 0 0 1
Arbitration
dispute
handled
24 22 7 53
Civil

1 0 0 1
Civil
&Constitunal
law

0 0 1 1
Civil &
Corporate

11 10 2 23
Civil & Criminal

3 0 0 3
Civil & Family

0 0 1 1
Civil & Property

1 0 0 1
Contractual
Dispute
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2 2 0 4
Criminal

0 3 1 4
Matrimonial

3 1 4 8
Property

46 38 16 100
Total

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
related to civil and 3 cases related to property. Similarly, in the period
are 5 disputes
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

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7 and 2 cases are criminal and the rest of 1 case is civil and criminal. Besides this, in
the duration of

103
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.

[Link] 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.

[Link].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?

No remedy is
better than To seek Inducement Other
this revenge from others reasons Total

District Mehsana 7 3 3 7 20

Rajkot 12 4 1 3 20

Surat 19 1 0 0 20

Vadodara 12 3 1 4 20

Ahmedaba 18 2 0 0 20
d

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
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Mehsana and Vadodara. There are also 2 respondents from Ahmedabad and 1 from

105
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.

[Link].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

District

Professional experience Mehsana Rajkot Surat Vadodara Ahmedabad Total

No 4 1 0 1 3 9

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107

Yes 3 2 2 2 2 11
Are you
satisfied with
0-5 the current
court system?
years

7 3 2 3 5 20
Total

5-10 3 1 4 2 2 12
No
years Are you
satisfied with
the current Yes 0 2 m 0 1 3 6
court system?

Total 3 3 4 3 5 18

10-15
No 5 1 4 3 2 15
years Are you
satisfied with
the current Yes 2 5 3 0 1 11
court system?

7 6 7 3 3 26
Total

15-20 1 2 1 5 3 12
No
years Are you
satisfied with
the current Yes 2 2 1 0 0 5
court system?

3 4 2 5 3 17
Total

2 1 1 1 5
No
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Yes 1 0 0 0 1
Are you
satisfied with
20-25 the current
court system?
years

3 1 1 1 6
Total

25-30 0 2 2 0 4
No
years Are you
satisfied with
the current Yes 1 1 2 2 6
court system?

Total 1 3 4 2 10

30-35
No 0 1 1
years Are you
satisfied with
the current Yes 1 0 1
court system?

1 1 2
Total

35-40 No 1 1
years Are you
satisfied with
the current
court system?

1 1
Total
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.

[Link].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

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12% advocates said because of too much time-consuming. The other reasons are
negligible.

110
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?

Lengthy All of the

Delay hearings Cost Time above Total

District Mehsana 0 5 1 1 6 13

Rajkot 0 2 0 0 5 7

Surat 5 2 0 3 3 13

Vadodara 2 0 0 2 10 14

Ahmedaba 5 2 0 1 4 12
d

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

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Vadodara out of 14, there are 10 advocates give all the reasons and 2 each delay and
time.

111
[Link].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.

[Link].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?

Unwilling to take
part in the ADR
Willing to take part
process
in the ADR process Total

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District 10 4 14
Mehsana

14 6 20
Rajkot

20 0 20
Surat

14 5 19
Vadodara

19 1 20
Ahmedaba
d

77 16 93
Total
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?

No Yes Total

District Mehsana 10 10 20

Rajkot 3 17 20

Surat 1 19 20

Vadodara 4 16 20

Ahmedaba 1 19 20
d

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19 81 100
Total
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.

[Link].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

Arbitratio Lok Conciliatio

n Mediation Adalat n Total

District Mehsana 0 9 1 0 10

Rajkot 4 10 0 3 17

Surat 13 6 0 0 19

Vadodara 9 7 0 0 16

Ahmedaba 7 10 2 0 19
d

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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118
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.

[Link].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
represents the same.

Table: 32. Advocates who have undergone mediation training

District * Have you undergone any mediation training?
Cross tabulation

Count

Have you undergone any

mediation training?

No Yes Total

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District 15 5 20
Mehsana

7 13 20
Rajkot

4 16 20
Surat

6 14 20
Vadodara

5 15 20
Ahmedaba
d

37 63 100
Total
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.

[Link] 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
represents the same.

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?

No Yes Total

District Mehsana 5 15 20

Rajkot 2 18 20

Surat 1 19 20

Vadodara 1 19 20

Ahmedaba 2 18 20
d

Total 11 89 100

121
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
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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.

122
Table: 34. Suggestion from the Advocates to Implement ADR Referral under
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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?

Awareness All of
of Awareness Awareness the
advocates to client to judges above others Total

District Mehsana 2 8 1 8 1 20

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

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

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.

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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

Asymptotic Significance (2-

Value Df sided)

Pearson Chi-Square 1.952a 4 .745

Likelihood Ratio 1.936 4 .747

Linear-by-Linear .021 1 .885

Association

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100
N of Valid Cases

a. 0 cells (0.0%) have expected count less than 5. The minimum expected
count is 7.60.

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 .140 .745

Phi
Nominal
.140 .745
Cramer's V

100
N of Valid Cases
However, to justify this test, it has been checked with the different type of ADR system
and the result shown below:

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1) Awareness of the Lok Adalat:

Table:37. Chi-Square Tests Aware of the Lok Adalat is

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Chi-Square Tests

Value df Asymptotic Significance (2-sided)

6.875a 4 .143
Pearson Chi-Square

7.774 4 .100
Likelihood Ratio

.278 1 .598
Linear-by-Linear
Association

100
N of Valid Cases

a. 5 cells (50.0%) have expected count less than 5. The minimum expected count is
00.

Symmetric Measures

Value Approximate Significance

Nominal by .262 .143

Phi
Nominal
.262 .143
Cramer's V

100
N of Valid Cases
132
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:

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Table:38. Chi-Square Tests Aware of Mediation is

Chi-Square Tests

Asymptotic Significance (2-

Value df sided)

Pearson Chi-Square 3.689a 4 .450

Likelihood Ratio 3.601 4 .463

Linear-by-Linear .021 1 .884

Association

N of Valid Cases 100

a. 0 cells (0.0%) have expected count less than 5. The minimum expected
count is 7.40.

Symmetric Measures

Approximate
Value Significance

Phi .192 .450

133

.192 .450
Nominal by Cramer's
Nominal V

100
N of Valid Cases

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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 0.450.

3) Awareness of the Arbitration

Table:39. Chi-Square Tests Aware of Arbitration

Chi-Square Tests

Asymptotic Significance (2-

Value df sided)

Pearson Chi-Square 6.894a 4 .142

Likelihood Ratio 7.127 4 .129

Linear-by-Linear .333 1 .564

Association

N of Valid Cases 100

a. 0 cells (0.0%) have expected count less than 5. The minimum expected
count is 7.80.

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Symmetric Measures

Value Approximate Significance

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Nominal by .263 .142

Phi
Nominal
.263 .142
Cramer's
V

100
No of Valid Cases
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 0.142.

4) Aware of the Conciliation

Table:40. Chi-Square Tests Aware of Conciliation is

Chi-Square Tests

Asymptotic Significance (2-

Value df sided)

Pearson Chi-Square 18.831a 4 .001

Likelihood Ratio 20.039 4 .000

Linear-by-Linear .502 1 .479

Association

N of Valid Cases 100

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a. 0 cells (0.0%) have expected count less than 5. The minimum expected
count is 8.80.

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Symmetric Measures

Value Approximate Significance

Nominal by .434 .001

Phi
Nominal
.434 .001
Cramer's
V

N of Valid Cases 100

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)

396a 4 .355
Pearson Chi-Square
136

494 4 .343
Likelihood Ratio

265 1 .039
Linear-by-Linear
Association

100
N of Valid Cases

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a. 0 cells (0.0%) have expected count less than 5. The minimum expected count is
7.00.

Symmetric Measures

Value Approximate Significance

Nominal by .210 .355

Phi
Nominal
.210 .355
Cramer's
V

100
N of Valid Cases
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.

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CHAPTER V

CONCLUSION AND RECOMMENDATIONS

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CHAPTER V

CONCLUSION AND RECOMMENDATIONS

5.1 Conclusion

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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
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 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.

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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
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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 abovegiven 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

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advocates said yes the Judge had asked about the ADR system but 19 % said no the
judge did not ask about the system which

142
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

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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.

143
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.

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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

144
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.
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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.

145
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

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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
courtannexed 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?

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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

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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?

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

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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?

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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?

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
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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?

a) Willing to take part in the ADR process
b) Unwilling to take part in the ADR process

6) If yes, how clients have 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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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

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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

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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".119

119 Supra note 90

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155
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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156
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.

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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

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The mediator shall conduct the mediation at one or other of the following places:

158
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

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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.
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(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 :

160
(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.

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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.

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(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:

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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;

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(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;

164
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.

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(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;

165
(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:

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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.

166
(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.
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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;

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(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.120

120 Mediation Centre Guidelines' ([Link])

<[Link] accessed 23 August 2019

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169
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,
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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:

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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

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(Up to January -2017)

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Part B

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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 Unsettle

Gujarat High Court Mediation Centre (established on 23/12/2008) 1251 263 159 802

Ahmedabad City Civil Court Mediation Centre (established on 24/12/08) 881 236 2 622

Family Court Mediation Centre, Ahmedabad (established on 01/05/09) 716 135 216 321

Anand ADR Centre (established on 31/07/11) 742 100 102 527

Banaskantha @ Palanpur ADR Centre (established on

860 204 194 439
17/04/13)

Bharuch ADR Centre (established on 10/12/11) 296 57 15 202

Dahod ADR Centre (established on 18/03/12) 454 46 0 392

Dang @ Ahwa Mediation Centre (established on 19/08/11) 2 0 0 2

Junagadh ADR Centre (established on 06/10/12) 319 48 51 195

Jamnagar Mediation Centre (established on 09/05/09) 1070 102 94 832

Kachchh Mediation Centre (established on 01/04/12) 1051 208 51 749

Kheda @ Nadiad Mediation Centre (established on 31/07/11) 326 40 2 262

Mehsana ADR Centre (established on 20/6/2015) 591 156 195 225

Navsari Mediation Centre (established on 18/08/11) 61 8 8 41

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Panchmahal @ Godhara ADR Centre (established on 04/03/12) 515 108 59 264

Patan Mediation Centre (established on 31/07/11) 490 110 150 167

Rajkot ADR. Centre (established on 04/07/2015) 2570 485 63 1787

Surendranagar Mediation Centre (established on 30/06/12) 673 175 0 467

Surat ADR Centre (established on 26/07/2014) 2723 580 40 2008

Vadodara Mediation Centre (established on 31/07/11) 708 86 6 502

Valsad ADR Centre (established on 07/04/2013) 252 44 19 123

Porbandar ADR Centre (established on 04-08-2013) 199 26 21 138

Chief Metro Magistrats Court Mediation Centre (established on 25-04-2014) 253 52 38 131

Amreli ADR Centre (established on 01-05-2016) 251 19 79 136

Ahmedabad (Rural) District Mediation Centre (established on 10.12.2016 197 17 7 43

Total 17451 3305 1571 11377

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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 [Link]
• Handbook on Mediation, Himachal Pradesh High Court, 2014 available at
[Link]
[Link]/DLSA/Act,s%20&%20Rule/Mediation_and_Concillation_Project_Committe0 [Link]

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
[Link]

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Books
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• 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 (1 stedn, 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
[Link]
• 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.

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