RESOLVING PENDING CASES THROUGH ALTERNATIVE DISPUTE .
313134913/2019/NMProject Report onRESOLVING PENDING CASES THROUGH ALTERNATIVEDISPUTE RESOLUTION UNDER SECTION 89 OF CIVILPROCEDURE CODE: A CASE STUDYSubmitted To:Department of Justice,Ministry of Law and Justice,Government of IndiaSubmitted By:Dr. Marisport AAssistant Professor of Law,Gujarat National Law University.
314134913/2019/NMProject Report onResolving pending cases through Alternative DisputeResolution under Section 89 of Civil Procedure Code:A Case StudySubmitted To:Department of Justice,Ministry of Law and Justice,Government of IndiaSubmitted by the research team consist ofDr. Marisport A.Assistant Professor of LawGujarat National Law University, Gujarat, IndiaDr Ambati Nageswara RaoAssistant Professor of Social WorkGujarat National Law University, Gujarat, IndiaMs Heena GoswamiAssistant Professor of Science and TechnologyGujarat National Law University, Gujarat, India
315134913/2019/NMAcknowledgementsOn behalf of our research team, I would like to thank Department of Justice for giving thisproject to us. Would like to thank our director Prof. (Dr.) S. Shanthakumar and former DirectorDr Bimal N. Patel for their constant support and motivation. Would like to thank our registrarDr 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 Nahataand Pooja Jasani for their dedicated support in data collection and data entry. I would like tothank Gujarat State Legal Services Authorities for their kind support for providing the datapertaining to Lok Adalat and mediation. I would like to thank our Data analyst Dr Vikas Kumarfor his dedicated support in data analysis. Finally I would like to thank my co-investigators DrAmbati Nageswara Rao, Assistant Professor of Social Work and Ms Heena Goswami,Assistant Professor of Science and Technology for their constant support.Dr. Marisport. APrincipal Investigatoriii
316134913/2019/NMTable of contentsLIST OF CASESXABBREVIATIONSXILIST OF TABLESXIILIST OF FIGURESXVEXECUIVE .1Review of Literature011.2Significance of the study071.3Scope and limitation of the study081.4Research objectives091.5Hypothesis091.6Research Methodology09HISTORY AND DEVELOPMENT OF ADR IN INDIA12 - 362.1ADR mechanisms in ancient India132.2History of ADR in India132.2.1History of Arbitration in India132.2.2History of conciliation in India152.2.3History of mediation in India16iv
317134913/2019/NM2.2.3.1Differences between courts annexed mediation andprivate mediation182.2.3.2Difference between Conciliation and Mediation192.2.4Lok Adalat212.2.5Permanent Lok Adalat31Difference between Lok Adalat and Permanent LokAdalat342.2.5.13.SALIENT FEATURES OF SECTION 89 OF CIVIL PROCEDURE37-54CODE3.1History of section 89 of CPC383.2Mandatory ADR referral of disputes and its usage invarious countries393.3Bare provision of section 89 of CPC413.4Lacuna in section 89 of CPC423.4.1Role of the judge with regards to referral of the disputeand recording of the settlement:433.4.2Court’s obligation under section 89 of CPC andmandatory referral of the dispute to any form of ADR463.4.3Deciding and referring appropriate ADR for theresolution of the Dispute473.4.4There is no clear-cut definition/explanation aboutdifferent types of ADRs and their referral 3.4.4.3Mediation50Role of court annexed mediation in section 89 referral51Lok Adalat523.4.4.3.13.4.4.4v
318134913/2019/NM3.4.4.5Judicial settlement53Inclusion of another new form of ADR543.4.5.1Dispute Adjudication Board and Dispute Review Board543.4.5.2Early Neutral Evaluation553.4.5.3Ministerial/Executive tribunal553.4.5.4Expert determination553.4.5.5ODR563.5Proposed amendment in the section 89 of CPC573.6Comprehensive road map for the role of the presidingjudge under section 89 of CPC583.4.54.ANALYSIS OF THE IMPLEMENTATION OF SECTION 89 OF59 - 136CPC IN THE STATE OF GUJARAT4.1Judicial system and ADR institutions in the state ofGujarat604.2Mindset of the stakeholders on the implementation ofsection 89 in the state of Gujarat65Data Analysis and Interpretation of Litigants664.2.1.1Broader Analysis of the Respondents674.2.1.2Respondent’s Education across the districts674.2.1.3Occupation of Respondent694.2.1.4Nature of dispute704.2.1.5Time duration of the Cases724.2.1.6Nature of Dispute with time duration724.2.1.7Nature of Dispute based on the District with timeduration734.2.1vi
319134913/2019/NM4.2.1.8Analysis Related to ADR awareness764.2.1.7.1Reason of filing the Case774.2.1.7.2Statistics related to the opinion of the litigants about theCurrent Court System784.2.1.7.3Reason for non-satisfaction804.2.1.7.4Awareness about the ADR System814.2.1.7.4.1Willingness to resolve their dispute through ADR824.2.1.7.4.2Suggested about ADR system or not834.2.1.7.3Form of ADR854.2.1.7.4Knowledge About the ADR874.2.1.7.5Knowledge on Lok Adalat884.2.1.7.6Knowledge on Mediation894.2.1.7.7Knowledge on Arbitration894.2.1.7.8Knowledge on Conciliation90Data Interpretation and Analysis of Advocates914.2.2.1Basic Analysis of the Respondents924.2.2.2Experience of Advocates934.2.2.3District wise Nature of Dispute handled by advocates954.2.2.4Time duration of the Cases964.2.2.5Nature of Dispute with time duration974.2.2.6Nature of Dispute based on the District with timeduration994.2.2.7Advocates perspective on the ADR System1034.2.2vii
320134913/2019/NM4.2.2.6.1Causes to bring the Case in Court1044.2.2.6.2Satisfaction with Current Court System1044.2.2.6.3Causes of dissatisfaction1084.2.2.6.4Suggesting the ADR System to the Litigants1104.2.2.6.4.1Suggested about the ADR system1104.2.2.6.4.2Form of ADR1154.2.2.6.4.3Number of advocates who got training in Mediation117Overall satisfaction of Trial Court’s approach on section89 referral117Testing of hypothesis1284.4.1Hypothesis 1: Litigants are not fully aware about theADR System1294.4.2Hypothesis II: Neither Advocates nor the Judgesexplained about the ADR system1364.2.6.54.45.CONCLUSION AND ations1455.2.1Amendment in section 89 of CPC1465.2.2Amendment in the order XX of CPC1475.2.3Other recommendations147Annexure I-Questioners which are used in the data collection149-153Part A Questioner for litigants149Part B Questioner for advocates151viii
321134913/2019/NMPart C-Questioner for judges153Annexure-II238th Report of Law Commission of IndiaRecommendations on the Amendment of Section 89 ofCPC154-155Annexure- IIIHigh Court of Gujarat Instruments on theimplementation of section 89 of CPC156-169Annexure- IVPart A-Civil Procedure Mediation (Gujarat) Draft Rules,2007156Part B-Draft referral order171Statistics on Lok Adalat and Mediation conducted in thestate of Gujarat172-174Part A-Statement Showing Details Of Lok Adalat &Legal Literacy Camp Held In Gujarat State (Up toJanuary -2017)172Part B- Statement Showing The Details Of The MattersTo All Adr/Mediation Centres In The State Ending31/03/2017 Since Its Establishment173REFERENCES175-176ix
322134913/2019/NMList of casesSr. NoTitle of the case1Sukanya Holding Private Ltd. v Jayes. H. Pandya, (AIR 2003 SC 2252).2Afcons Infrastructure Ltd. & Another v Cherian Varkey Construction CompanyPvt. Ltd. & Others 2010 (8) SCC 243Salem Advocate Bar Association, T.N. v Union of India (2005) 6 SCC 3444Salem Advocate Bar Association v Union of India [2003 (1) SCC 495Punjab National Bank v Laxmichand Rai & Ors, AIR 2000 MP 3016Kamal Mehta v General Manager, Rajasthan Roadways Transport Corporation& Another, FAO No. 798 of 19997Venkatesh v Oriental Insurance Co. Ltd., ILR2002KAR36668Bharvagi Constructions & Anr v Kothakapu Muthyam Reddy & Ors., CivilAppeal No.11345 Of 20179State of Punjab & Anr. v Jalour Singh & Ors. (2008) 2 SCC 660.10Smt. Soni Kumari v Sri Akhand Pratap Sing, Allahabad HC, 201811K.N. Govindan Kutty Menon v C.D. Shaji, SC, 201212Subhash Narasappa Mangrule (M/S) & Others v Sidramappa Jagdevappa Unnad,2009 (3) Mh.L.J. 85713M/s Valarmathi Oil Industries & Anr. v M/s Saradhi Ginning Factory, AIR 2009Madras 18014Moti Ram v Ashok Kumar, (2011) 1 SCC 46615Bar Council of India v Union of India, SC 201216InterGlobe Aviation Ltd v N. Satchidanand, (2011) 7 SCC 463.17S.N. Pandey v Union of India, Writ Petition (Civil) No. 543/2002 (SC).18Jagdish Chander v Ramesh Chander 2007 (5) SCC 719x
323134913/2019/NMAbbreviationsADR:Alternate Dispute ResolutionNLSA:National Legal Services AuthoritySLSA:State Legal Services AuthorityNJDG:National Judicial Data GridUNCITRAL: United Nations Commission on International Trade LawCPC:MCPC: Mediation and Conciliation Project CommitteeISDLS: Institute for Study and Development of Legal SystemsPL:Permanent Lok Adalat.ODR:Online Dispute ResolutionMACT:Motor Accident Claims TribunalCivil Procedure Code 1908xi
324134913/2019/NMList of TablesSr. No1Details of TablePage NoTable-1Court Wise Institution, Disposal and Pendency of Civil &Criminal Cases for the Period: 01/01/2018 to 31/12/2018(excluding High Court)156Table-2Number of Lok Adalats Held and Cases Settled by StateLegal Services Authorities (other than National LokAdalats) (April,2017 to March, 2018)57Table-3The Number of Lok Adalats Held by State Legal ServicesAuthorities Under Legal Services Authorities Act 1987And Cases Settled Since Inception (As On 30.06.2017)58Table-4Number of Lok Adalats conducted and number of disposed of inthe state of Gujarat from 1982 to 201859Table-5Permanent Lok Adalats (Established u/s 22-B of LSA Act)For the period w.e.f. April 2017 to March 201860Table-661Table-7Details of The Matters Referred to All ADR/MediationCenters in the State of Gujarat from 2012 to 2018Cases settled through mediation April 2017 to March 2018Table-8Region wise distribution of the Sample65Table-9Nature of dispute involved across the district69Table-10Nature of Dispute based on the District with time duration71Table-11District wise cross tabulation of filed Cases73Table-12Education wise cross tabulation of filed Cases75Table-13Are opinion of the litigants upon the satisfaction of thecurrent court system.76Table-14District-wise* reasons for dissatisfaction on the currentcourt system78Table-15District * whether the judge has asked you to resolve yourdispute through ADR or not8262High Court of Gujarat, Annual Report, 2018. Available at http://gujarathighcourt.nic.in/annualreportxii
325134913/2019/NMTable-16District -wise* forms of ADR84Table-17Knowledge of Lok Adalat87Table-18Knowledge of mediation88Table-19Knowledge of Arbitration89Table-20District wise * knowledge on conciliation90Table-21Region wise distribution of the Sample91Table-22District wise Professional experience of Advocates93Table-23District wise Nature of Dispute handled by advocates94Table-24Nature of dispute with time duration96Table-25Nature of Dispute based on the District with time duration98Table-26Causes for bringing their dispute in Court by the litigants102Table-27Based on the Experience satisfaction with Current CourtSystem across the districts105Table-28Reasons for the dissatisfaction on the court system by theadvocates108Table-29Clients reaction on the ADR options given by theadvocates111Table-30District * Whether the judge has asked you to resolve yourclient’s dispute to resolve your dispute through ADR ornot113Table-31Form of ADR preferred by advocates115Table-32Advocates who have undergone mediation training117Table-33Overall satisfaction of Trial Court’s approach on section89 referral118Table-34Suggestion from The Advocates to Implement ADRReferral Under Section 89120Table-35Feel Improvement is required to Aid the Prompt Disposalof Cases122Table-36Chi-Square TestsLitigants are not fully aware about theADR System128xiii
326134913/2019/NMTable-37Chi-Square Tests Aware about theLok Adalat is129Table-38Chi-Square Tests Aware about Mediation is131Table-39Chi-Square Tests Aware about Arbitrationis132Table-40Chi-Square Tests Aware about Conciliation is133Table-41Chi-Square Tests Neither Advocates nor the Judgesexplained about the ADR system134xiv
327134913/2019/NMList of figuresSr. NoFigure 1Title of the FigurePage No.Number of Lok Adalats conducted and number of disposed60of in the state of Gujarat from 2010 to 2018Figure-2Educational Qualification66Figure-3Education wise Respondents across the districts66Figure-4Occupation of the Respondent67Figure-5Occupation of Respondent in depth68Figure-6Nature of dispute involved69Figure-7Time duration of the Cases70Figure-8Nature of Dispute with time duration71Figure-9Reason behind the filing of the Case73Figure-10District * litigants’ satisfaction on the current court system76cross tabulationFigure-11Reason for non-satisfaction77Figure-12Willingness to resolve their dispute through ADR System79Figure -13District wise Willingness to resolve their dispute through80ADR SystmeFigure- 14District wise whether anybody has been suggested about this81ADR system or notFigure-15Whether the Judge has asked to resolve the dispute through82ADR or not.Figure-16Form of ADR84Figure-17Do you know what ADR is?86Figure-18Knowledge of Arbitration92Figure-19Practicing Experience of Advocates94Figure-20Nature of Dispute handled by Advocates96Figure-21Time duration of the Cases102Figure-22Causes for bringing their dispute in Court by the litigants104Figure-23Satisfaction with Current Court System104Figure-24District wise Satisfaction with Current Court System108xv
328134913/2019/NMFigure-25Reason for non-satisfaction110Figure-26Suggested about the ADR system110Figure-27District wise Suggested about the ADR system to resolve113their dispute by AdvocatesFigure-28Reaction of clients relating to ADR System115Figure-29Whether the Judge has asked you to resolve your client’s116dispute through ADRFigure-30Form of ADR has been preferred by advocates118Figure-31The advocates who have undergone the mediation training120Figure-32Overall satisfaction of the Trial Court’s approach on section12289 referralFigure-33Suggestion from The Advocates to Implement ADR Referral123Under Section 89Figure-34Suggested the litigants for resolving their dispute through123any form of ADRFigure-35Advocates have reacted about the suggestion of Judges124Figure-36Form of ADR suggested in Most of the times for the124resolution of the disputesFigure-37Form of ADR suggested in Most of the times for the125resolution of the disputesFigure-38After the Referral most of the Cases got126Figure-39Reason for unsettlement of dispute through ADR127Figure-40Suggestions for the better Implementation of Section 89 of127CPCxvi
329134913/2019/NMExecutive SummaryThis 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 casesas amicably as possible and reduce the pending and future dispute thereby reduce the workloadof the existing courts through section 89 referral. In this context, this study has scrutinized thereferral process of the civil courts under section 89 of the civil procedure code and which ADRform is primarily used to resolve the dispute. In the backdrop of the study, it has also attemptedto examine the accomplishment of settlement of the disputes through section 89 referral andwhat could be the possible strategies to implement ADR system in a better way. Our researchteam has used doctrinal and non-doctrinal research methods to find out the currentimplementation scenario and what is the problem faced by the stakeholders whileimplementing this section and come with the possible suggestions for the better implementationof this section.Based on the analysis of section 89 of CPC along with various judgments of Supreme Courtand 238th report of Law Commission of India, our research team has concluded that this sectionis required substantial amendments on the exact procedure supposed to be followed in the ADRreferral 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 thecurrent implementation scenario and what is the problem faced by the stakeholders whileimplementing Section 89 of CPC. In order to understand the practical difficulties inimplementation of section 89 of CPC and after considering the perception and behaviourobservations of clients, judges and Advocates. Our research team has collected 212 samplesacross 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 fromAdvocates and 12 samples have collected from retired judges. The research study scrutinizedthe referral process of the civil courts under section 89 of the civil procedure code and whichADR form is highly used to resolve the dispute.The result shows that 55% of the litigants are not really satisfied with the current court systemand 45% of the litigants satisfied with the current court system. In comparison, out of 100advocates, 59% of the respondents are not satisfied with the current court system and 41% aresatisfied. The litigants as well as advocates have displayed surprising amount of dissatisfactionabout the current court system.xvii
330134913/2019/NMThe research study shows that 93% of the advocates have proposed the option of the ADRsystem to solve their dispute and rest of 7% have refused to consider this option altogether. Outof this, 93% advocates suggested that the ADR mechanism to settle the dispute andapproximately 83% of the litigants are interested to adopt ADR system to solve their disputeand rest of the 17% not interested to solve. On the other side, 76% of the litigants are interestedto adopt ADR system to solve their dispute and rest of the 24% not interested to solve. Theresearch states that 65% of the litigants got their suggestion about the ADR system before filingthe 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 withnew dispute resolution method, however advocates with less experience or young advocatesseems comparativelysatisfied with the new method of settling dispute through arbitration,mediation and conciliation. This research study also tried to find that which ADR system ismore preferable and based on the result, the litigants votes have suggested that the highestnumber of favourable responses have been given given to arbitration (38.33%) followed bymediation (31%), Conciliation (23%), and Lok Adalat (6 %). On the other hand, the 81% ofthe 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 favourof ADR referral under section 89 of CPC and rest of 11% said the trial Court is not in favourof ADR referral under section 89 of CPC.The research study further compared between all the three stakeholders i.e. advocates, clientsand judges on the section 89 referral Firstly, as we asked about whether ADR process has beenintroduced by the judges or not. The result shows that all the judges (total 12) said they haveintroduced ADR to the clients as well advocates. But, if we see the result from the clients, only60% respondents said that ADR has been introduced by Judge and 40 % denied that judgeshave asked to solve their dispute through ADR. On the other hand, in terms of advocates only81% of respondents said about the judges have been introduced ADR but all the judges claimedthey told to the advocates about the ADR. Similarly, in terms of willing to take part of ADRprocess, the judges claimed that, most of the clients are not willing to solve their disputethrough ADR process but in compare with advocat
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 134913/2019/NM 316. v 2.2.3.1 Differences between courts annexed mediation and private mediation 18 2.2.3.2 Difference between Conciliation and Mediation 19 2.2.4 Lok Adalat 21 2.2.5 Permanent Lok Adalat .
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If objective and eye lens are interchanged, practically there is no change in magnification. (3) Resolving limit and resolving power : In reference to a microscope, the minimum distance between two lines at which they are just distinct is called Resolving limit (RL) and it’s reciprocal is called Resolving power (RP) www.manisharya.com
disconnected and pending. You can view the EAPs in different status on different pages: All Displays the information of all EAPs in different status. Pending Displays the pending EAPs. All the EAPs are in pending status by default when first discovered by Omada Controller, and only after they are adopted and connected, you can manage them. To
Information on the CCI website reveals that as on March 20151, there were approximately 590 cases pending before CCI and about 8.5% of these cases were cases transferred from the MRTP Commission. Approximately 83.1% of the cases were cases where someone approached the CCI and in approximately 4.6% of the cases, CCI has taken suo moto cognizance.
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Resolving power: Property of the instrument!!May be estimated on theoretical principles! I.A.3.d Resolution ! I.A.3 Photons/Electrons! In the TEM, resolution achieved with biological samples is nearly always considerably WORSE than the theoretical instrument resolving power! Resolution: always resolving power!!
RESOLVING POWER: Ability of the optical system to distinguish and separate fine structural details in a specimen. The resolving power is limited by the NA of the objective, and it also depends upon the working NA of the sub-stage condenser, the higher the effective NA of the system the greater will be the resolving power.
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