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The Reason Why Section 89 Has Been Inserted In CPC

The Supreme Court of India in Salem Advocate Bar Association Vs. Union of India; AIR 2003 SC 189 : (2003) 1 SCC 49 : JT 2002 (9) SC 175 : 2002 (3) Suppl.SCR 353 : 2002 (8) SCALE 146 : 2003 (1) ALLMR (SC) 391 : 2002 (6) ALT 1 (SC) : 2003 (3) AWC 2238 (SC) : 100 (2002) DLT 691 (SC) : I (2003) DMC 73 SC : (2003) 1 GLR 148 : RLW 2007 (3) SC 2531 : 2003 (1) UJ 1 (SC) : 2003 (2) WLN 665 held that the reason why section 89 has been inserted is to try and see that all the cases which are filed in Court need not necessarily be decided by the court itself.

A bench comprising of Chief Justice B.N. Kirpal, Justice Y.K. Sabharwal and Justice Arijit Pasayat keeping in mind the laws delays and the limited number of Judges available, observed that, it has now become imperative that resort should be had to Alternative Dispute Resolution Mechanism with a view to bring to an end litigation between the parties at an early date.

Section 89 CPC

The Alternative Dispute Resolution (ADR) Mechanism as contemplated by Section 89 is arbitration or conciliation or judicial settlement including settlement through Lok Adalat or mediation. Sub-section (2) of Section 89 refers to different Acts in relation to arbitration, conciliation or settlement through Lok Adalat, but with regard to mediation Section 89(2)(d) provides that the parties shall follow the procedure as may be prescribed. Section 89(2)(d), therefore, contemplates appropriate rules being framed with regard to mediation.

There is a requirement that the parties to the suit must indicate the form of ADR which they would like to resort to during the pendency of trial of the suit. If the parties agree to arbitration, then the provisions of the Arbitration and conciliation Act, 1996 will apply and that case will go outside the stream of the court but resorting to conciliation or judicial settlement or mediation with a view to settle the dispute would not ipso facto take the case outside the judicial system. All that this means is that effort has to be made to bring about an amicable settlement between the parties but if conciliation or mediation or judicial settlement is not possible, despite efforts being made, the case will ultimately go to trial.

Section 89 is a new provision and even though arbitration or conciliation has been in place as a mode for settling the disputes, this has not really reduced the burden on the courts. Modalities have to be formulated for the manner in which Section 89 and, for that matter, the other provisions which have been introduced by way of amendments, may have to be in operation. For this purpose, it will be appropriate that a Committee is constituted so as to ensure that the amendments made become effective and result in quicker dispensation of justice.

With the constitution of such a Committee, any creases which require to be ironed out can be identified and apprehensions which may exist in the minds of the litigating public or the lawyers clarified. This Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the ADR referred to in Section 89. The model rules, with or without modification, which are formulated may be adopted by the High Courts concerned for giving effect to Section 89(2)(d).

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