The law students doing court observation on the impact of S. 89 CPC have missed the point, because the law practitioners themselves are insensitive and indifferent. Let me make up the deficiency thereby ensuing.
Law and practice may not be consistent. Better say practice may not be consistent with law. Practice is just a rut which is created by usage. Law practitioners detest assuming the role of reformer. Their obvious goal is to do justice with the brief in hand. The practice they follow find orientation from the demand which the brief in hand calls for.
Now coming to S. 89 CPC, it is essential to state the contour which a civil proceeding traverses.
A civil suit commences with the presentation of Plaint ( which contains a suitor's grievances and reliefs sought).
Obviously, a litigant, i.e., Plaintiff, files his suit upon being forced to the wall. After suit institution, his whole focus lies on either interim relief , but in absence thereof, on a speedy trial. But trial does not start off until the pre- trial hurdles are overcome, including several things like ensuring appearance of the parties sued, called Defendants, after effective service of summons, followed by the completion of the pre- trial stage, in the form of the filing of reply (called written statement) by the Defendants.
The above pre-trial process is quite tiring for the Plaintiff who has been in quest for his remedy by the legal process.
Now comes the next stage, where the pre-trial stage ends and the stage of trial arrives. The first step in that direction is the framing of issues, followed by adducing of evidence whereafter the case would be argued out and judgment would be passed.
The above description of the whole trial process has been given in a sweep, but in reality its pace is slower than the slowest pace one may imagine. Going by the present status, cases filed in the eighties and nineties are still pending. Why, is not that easy to explain in a short note.
Now coming back to the main issue, i.e., S.89 CPC, in reality its stage is no where difined, nor is trial court's hands fettered. It can invoke this provision as and when possibility of conciliation, compromise or mediation occurs in the opinion of the presiding officer.
However, fact remains that this aspect has been grossly overlooked by all concerned, by the litigants, lawyers, judicial officers as well as by high court's inspection cell .
In practice, the above provision is invoked at a very wrong stage, at the very commencement of the pre- trial stage.
The court would not frame issue unless the Plaintiff overcomes the hurdle of S. 89. The term 'hurdle' is that which Plaintiff, in quest for justice woul obviously feel if the suit proceeing gets shunted like a train until the red signal marked by S. 89 CPC is addressed, this way or that. Plaintiff better prefers 'this' and avoid 'that'. 'This' represents Plaintiff's routine petitioning that no settlement could be reached, hence court is requested to proceed. The term 'that' represents an unwise move to let the proceeding remain held up while possibility of settlement is explored, in which court's participationnis not minimal, rather it is wholly absent.
That explains why the legislative intent stands defeated, about which no one seems concerned, much less responsible.
Now the moot question is, whether the legislative intent behindvS. 89 may be appreciated and made effective?
It is for the students to find out, by collecting legal opinion from the practising professionals whose scant regard for this pragmatic legislation is known too well.
To help the students in their above endeavour, I may post some more materials on the topic. Interested readers may, therefore, follow subsequent posts.
The proliferation of laws and increase in population has resulted in manifold increase in the volume of litigation. The overloaded judicial system is finding it difficult to cope up with the demands on it, having regard to the inherent limitations of the system. The demands for more judges, more courts, better infrastructure, and better laws have remained unfulfilled. It has become quite common for civil disputes, in particular litigations involving partitions, evictions, easements and specific performance, to be fought for several decades through the hierarchy of courts. In commercial litigation, delay destroys businesses. In family disputes, delay destroys peace, harmony and health turning litigants into nervous wrecks. The uncertainty about the final outcome, the frequent changes in laws, the enormous expenditure of time, energy and money, associated with court litigations, are taking a toll on the litigant. Many a litigant feels that delays, uncertainties, inflexibilities and technicalities in law has made justice elusive and illusive. People find it costly, time consuming and distressing.
ReplyDeleteAs a result, people with grievances and complaints have started looking for quicker relief outside law. A landlord who wants possession from a tenant, knowing that litigation may take years with no certainty of success in getting possession at the end of the litigation, does not think twice of engaging the services of musclemen to evict the tenant. Instances of citizens approaching the underworld or unscrupulous police officials or politically influential elements, to settle claims and recover properties are steadily increasing. Not only moneylenders, but even banks, instead of approaching law courts, entrust debt collection to dubious agencies, to coerce, threaten and persuade debtors and borrowers to repay loans. Though well aware that such methods are illegal, costly and risky, members of public are lured towards illegal methods, in the hope that results will be swift, decisive and effective. Little do they realise that adopting such means is illegal and fraught with danger to all concerned.
More importantly, the weak and downtrodden who are subjected to injustices, being ignorant of legal rights and remedies, and not being able to access effective and speedy justice, tend to take law into their own hands. Several disputes which ought to have found solution in civil litigations end up as crimes. There is an alarming trend in several States where criminal litigation in subordinate courts outnumbers civil litigation by several times. It has, therefore, become necessary to educate the public, in particular weaker and downtrodden sections of the society, about their rights and obligations, as also about the remedies and forums available for securing justice. When such awareness is brought and weaker sections are provided free legal aid, there will be more demands for equitable and effective administration of the laws and more seekers of justice.
In this background, the need of the hour is to reduce adversarial adjudicatory litigation and at the same time, give speedy, satisfactory and cost-effective justice. That is where alternative dispute resolution processes with the active participation of the Bar, become relevant and urgent.
A meaningful and responsible debate as to the proper form of Section 89 by judicial academies and law fraternity and a relook at the section by Parliament may go a long way to make ADR process an effective solution to provide speedy and satisfactory justice at an affordable cost.
S, 89 CPC offers a window to clearly see two things. One is the scant regard for legislative intent. Bar and bench both take this provision with little seriousness. Court's mechanically invoke it at a wrong stage of the suit. This provision is viewed as a forbidding provision against issue framing, thereby stimulating the plaintiff into overcoming this provision by filing a petition that there is no chance of compromise. Even the court fails to see what compels the paintiff to take such a stand. If issues are framed, the proceeding slogs thereafter, which is the right stage for the court to find out whether any elements of compromise or outside the court settlement Alternative Dispute Resolution.
ReplyDeleteWe have done preliminary court observation on the impact of S. 89 CPC which takes ADR in the sweep of civil procedural law.
DEFINITIONAny method of resolving disputes other than by litigation. Abbreviated as ADR. Public courts may be asked to review the validity of ADR methods, but they will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them. Arbitration and mediation are the two major forms of ADR.OVERVIEWAlternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory.While the two most common forms of ADR are arbitration and mediation, negotiation is almost always attempted first to resolve a dispute. It is the preeminent mode of dispute resolution. Negotiation allows the parties to meet in order to settle a dispute. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution.Mediation is also an informal alternative to litigation. Mediators are individuals trained in negotiations, who bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject. Mediation is used for a wide gamut of case-types ranging from juvenile felonies to federal government negotiations with Native American Indian tribes. Mediation has also become a significant method for resolving disputes between investors and their stock brokers. See Securities Dispute Resolution.Arbitration is a simplified version of a trial involving limited discovery and simplified rules of evidence. The arbitration is headed and decided by an arbitral panel. To comprise a panel, either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third. Arbitration hearings usually last between a few days to a week, and the panel only meets for a few hours per day. The panel then deliberates and issues a written decision, or arbitral award. Opinions are not public record. Arbitration has long been used in labor, construction, and securities regulation, but is now gaining popularity in other business disputes.
In 1958, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards was drafted to aid in the enforcement in domestic courts of awards granted in foreign countries. As of August 2007, there were 142 countries participating in the convention. In 1970, the United States joined the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards.