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Report No. 129

3.21. The fourth alternative suggested was introduction of Conciliation Court as at present in vogue in Himachal Pradesh. It is a model which can be combined with any of the other three models. It may be examined. Available mechanisms for resolution of disputes are adjudication by courts, arbitration, mediation, negotiation and various blends of these and other devices, such as Ombudsman or fact-finding inquiry body. Conciliation is one such method. It has hardly been put to test save to a limited extant in labour laws. It is a model worthwhile examining.

3.22. Parliament envisaged introduction of conciliation as a mode - for resolution of disputes in civil litigation. Order XXVII provides for suits by or against the Government or public officers in their official capacity. Rule 5B was introduced in Order XXVII by the Code of Civil Procedure (Amendment) Act, 1976. It reads as under:

"5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement.-(1) In every suit or proceeding to which the Government, or a public officer acting in his official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred under sub-rule (2) is in addition to any other power of the Court to adjourn proceedings.".

Identical provisions can be found in sub-sections (2) and (3) of section 23 of Hindu Marriage Act, 1955 and sub-section (1) of section 9 of the Family Courts Act, 1984. Though rule 5B is limited in its application to a suit to which the Government or the public officer rioting in his official capacity is a party it is trine to expand the coverage of the method of resolution of disputes therein provided to all suits in civil courts, including the claim for compensation before the Motor Accidents Claims.

Tribunal Rule 5B provides that in a suit to which it applies, it should be the duty of the Court to make, in the first instance, every endeavour where it is possible to do so consistently with the nature and circumstances of the case to assist the parties in arriving at a settlement in respect of the subject matter of the dispute.

Where the court is of the opinion that there is a reasonable possibility of a settlement between the parties to the suit, the proceedings may be adjourned for such period as it thinks fit to enable attempts to be made to effect such settlement. Rule 5B expects the court before which the suit is pending to itself attempt to conciliate the dispute. An apprehension was entertained that if the attempt at conciliation fails, the presiding Judge whose efforts failed may be embarrassed in proceeding with the suit on merits. What is the way out?

3.23. Chief Justice of Himachal Pradesh High Court, Justice P.D. Desai, being aware that the system is over-stretched and bursting at the seams, with a view to salvaging the system coupled with a burning desire to make the system result-oriented assisted by an uncanny vision, has used this provision so successfully that the scheme of Conciliation Court framed by him and successfully operated by him may now be accepted by all courts.

Not confining the conciliation process to the suits to which rule 5B would apply, the Chief Justice has made it applicable to all types of litigation set out in the scheme under the heading 'Identification. and Transfer of Cases to the Conciliation Courts'. Frankly speaking, hardly any litigation of civil nature is left out of the purview of the Conciliation Court. He has not only successfully worked the scheme but obtained results which are very encouraging. This can be deduced from the information hereunder supplied:

S. No.

Period

Number of cases disposed of by the Conciliation Courts.

1.

1-9-84 to 31-12-84

176

2.

1-1-85 to 31-12-85

1890

3.

1-1-86 to 31-12-86

4897

4.

1-1-87 to 31-12-87

8544

15,507

As the scheme is extended to Motor Accidents Claims Tribunal, during the period August 1, 1986 to December 1, 1987, the Conciliation Court disposed of 261 claim cases out of 555 pending before the Tribunal and the settlements resulted in distribution of compensation to the tune of Rs. 56,75,056. The results are so encouraging that the success of the model cannot be put into question. And in a State like Himachal Pradesh where the concentration of litigation may not be as high as in Bombay or Calcutta or Madras, the impact of the System in reduction of litigation can be said to be noteworthy.

3.24. What is the scheme? Briefly, the scheme envisages the setting up of Conciliation Court earmarked for this purpose to which all suits at a preliminary stage after pleadings have been filed are transferred. Conciliation Court is presided over by a Judge other than the one who would have jurisdiction to try the suit in urban areas where there is more than one court. At the taluk level if there is only one court, eschewing any inhibition of embarFassment, the presiding Judge of the same Court attempts to conciliate in the matter under the scheme.

3.25. The Conciliation Court, in order to form an opinion about the alternative formula for an amicable settlement, goes through the case papers and also verifies the facts from the counsel as well as from the parties to the extent necessary and endeavours to evolve a fair and just formula, acceptable to both parties, for an amicable settlement of the issues in dispute. The Judge, with his suave persuasiveness, participates in this process.

The Judge is expected to bring to bear on the subject his understanding, narrowing down the area of conflict, persuading the parties to accept a fair settlement, and is required to put his concentrated efforts in this behalf. The Conciliation Court, in the initial stage of the operation of the scheme, got the guidance and advice of superior judicial officers and now there is a trained cadre of Judges in Himachal Pradesh who successfully operate the scheme.

3.26. The senior members of the Bar, amongst others, are invited for personal discussion by the District Judge, Additional District Judge and Conciliation Court with a view to impressing upon them that the project is on trial basis and its success would materially help in making the system resilient which had become static. It was also to be impressed upon them that this approach would save cost, avoiding the inevitable necessity of calling witnesses, long drawn out cross-examination and unending arguments and all that goes with a routine litigation in civil courts at present times.

It is open to the Conciliation Court to frame issues and even try such cases on merit or dismiss in default of appearance or proceed ex parte in appropriate cases but with a note of caution that the powers of dismissal for default or proceeding ex parte are to be sparingly used with a limited end in view of securing the presence of the parties and their counsel in order to facilitate the conciliation works.

It is thus an informal approach uninhibited by the Code of Civil Procedure and informality permeates the proceeding before the Conciliation Court so as to help the parties in not taking up hostile adversarial attitude but try to narrow the difference and ultimately resolve the dispute. If the parties agree to a compromise, the same is recorded as required by Order XXIII, rules 1 and 2 of the Code of Civil Procedure. The litigation ends there.

3.27. In the event of failure of the Conciliation Court, the suit is returned either as a whole or, where parties have narrowed down the area of dispute, with the narrow area for adjudication by the court in whose jurisdiction the suit was filed. The scheme differs from the adjudicatory process in civil court in the sense that it has an informal atmosphere and approach of give and take and appreciation of the point of view of both sides and even help of senior advocates who are not engaged by the parties. As the scheme is successfully working, it must be accepted as a model and the Law Commission is informed that recently judicial officers of the Rajasthan State Judiciary supported the introduction of the model in Rajasthan State.1

1. Indian Express (Delhi Edition), dated 19th Feb, 198, p. 10.

3.28. While approving the scheme as a whole, to make it more efficient and effective, it is necessary to remove the difficulty experienced by the Conciliation Courts in Himachal Pradesh in settling disputes between the parties by way of conciliation when the parties do not appear in person before the court. No one, under the provisions of the Code of Civil procedure, 1908, as amended in 1976, can be compelled to appear before the court. It may be pointed out that an ex parte decree on merits can be passed. But that would net help in resolving the dispute by the interface between parties.

Order X, rule 4 of Code of Civil Procedure gives power to the Court to pronounce the judgment against the party or to make any other suitable order in this behalf only if the Pleader to the party is unable to answer any material question relating to a suit. In other words, a party cannot be ordered/directed to appear in person before the court under, existing provision of Order X, rule 4 Code of Civil Procedure with a view to securing the personal attendance of a party in the court for specific settlement. It is, therefore, necessary to empower the court to deal efficiently with the absenteeism. This can be done by making the following amendments in order X of the Code of Civil Procedure:-

(i) The following may be added as sub-clause (c) immediately after sub-clause (b), clause (i) rule 2 of Order X of the Code of Civil procedure:

"May require the attendance of any party to the suit or proceedings, to appear in person with a view to arriving at an amicable settlement of the dispute between the parties and make an attempt to settle the dispute between the parties amicably ."

(ii) The following may be added as clause (3) immediately below clause (2) of rule 4 of Order X, Code of Civil Procedure:-

"Where a party ordered to appear before the court in person with a view to arriving at an amicable settlement of the dispute between the parties, fails to appear in person before the court without lawful excuse on the Gate so appointed, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit".

With these additions, the Law Commission is of the opinion that the scheme will be very effective and must be made obligatory in all courts, removing the limitations that are to be found in rule 5B of Order XXVII in the matter of application of the procedure to suits,other than those set out therein. In fact, the scheme must apply to all suits of a civil nature coming before civil courts.

3.29. There is an identical provision in rule 3 of Order XXXIIA introduced in the Code of Civil Procedure by the same amending statute which makes the procedure therein applicable to suits end proceedings set out in sub-rule (1). The scheme must mutatis mutandis apply to them also without any further variation. The scheme in its full outlines is annexed at Appendix V to this report.

3.30. In a Seminar/Workshop organised at Bombay, various suggestions were made for effectively dealing with urban litigation. Bombay presumably has the highest concentration of urban litigation at all levels. This will be clear from the fact that in order to reduce the pressure on the High Court, a City Civil and Sessions Court was set up at Bombay in the year 1948. Initial sanctioned strength of Judges was 4. As on April 30, 1988, 37 judges were in position in the City Civil and Sessions Court and 53,266 civil suits and 4,944 criminal cases await disposal. Pendency of civil matters include suits more than 10 years old.

To highlight this position, it may be mentioned that six States have set up City Civil Courts. They are Gujarat, Calcutta, Tamil Nadu, Karnataka, Maharashtra and Andhra Pradesh. A chart showing the jurisdiction of the City Civil Court, the area in which the Court was set up, the initial sanctioned strength of Judges, present strength of Judges, initial arrears with which it started and the present arrears will be found at Appendix VI.

3.31. When these disturbing figures were highlighted at the Seminar/ Workshop, a suggestion was made whether the court can be empowered to compel parties to go to arbitration. It may be recalled that the participants in the Seminar/Workshop included a number of High Court Judges, some City Civil Court Judges and Judges from other ranks. The suggestion was by a member of the Judiciary. As the provisions of Arbitration Act, 1940 today stand, before a party can be forced to resort to arbitration, there must be a subsisting arbitration agreement between the parties or even in a matter pending in the court, parties can resort to arbitration by consent of all the parties involved in the dispute.

In the absence of an arbitration agreement or in the absence of the consent being accorded, the court is powerless to force parties to go to arbitration. The judges clearly were of the opinion that there are numerous cases in which arbitration would be a better mode of resolution of dispute than a proceeding in the court. The suggestion deserves serious consideration and amendment to the Arbitration Act may become a necessity, it is not possible to deal with the suggestion in this report but it would be worthwhile to have a separate report on the subject which the Law Commission, time permitting, would undertake.

3.32. Thus we have four different models. They cannot be said to be exclusive of each other in character. One or two can be said to be complementary to each other, such as the Conciliation Court model can be introduced with any other model. But the choice has to be made from three models, such as whether the present system should continue or whether a Bench of two Judges should hear the case or the participatory model must be introduced. After mature consideration, the Law Commission is of the opinion that the participatory model should be introduced along with Conciliation Courts.



Urban Litigation Mediation as Alternative to Adjudication Back




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