Examining The Adequacy of Referral System Under Section 89 Of Code of Civil Procedure [A Case Study in Jaipur (Rajasthan)]

Abstract

In the present research the scope of the study is to critically analyse the perceptions of the basic actors (Judges, Advocates and Litigants) on the referral of cases under “Section 89 of the Code of Civil Procedure” for the settlement. In India, there are more than 40 million cases which are pending in the courts. To reduce this burden of the courts, “Sec 89 of Code of Civil Procedure” is there. Before 1999, “Sec 89” only has arbitration as an alternative dispute resolution mechanism, but in the year 1999, this Section got amended and the other mechanism such as Mediation, Lok Adalat etc. Were also included. The very essence of this Section is to provide the alternative mechanisms for dispute resolution. This “Sec 89” mandates the judges that “if there is any element of settlement between the disputed parties then the case shall be referred to any of the Alternative Dispute Resolution mechanism, depending upon the nature of the case”. But still the burden of cases on the courts is not decreasing and this may be because of the improper implementation and the execution of the referral provision and referral system. The role of basic actors to the case is very essential in the proper implementation and execution of referral of cases. Further, this research study will emphasis on various ADR mechanisms, as the courts uses these dispute resolution mechanisms. In addition, the emphasis will also give to the two landmark judgements i.e. “Salem Advocate Bar Association v. Union of India (both 2003 and 2005 case)” and “Afcons Infrastructure Ltd. Cherian Varkey Construction Co. (P) Ltd”, as they are the backbone of the referral process.

So, in this research study the author formerly uses doctrinal method of research to deal with the historical background of “Section 89 of CPC”. While using this methodology the author focused upon several research paper, articles, books, etc. Further, the author also used empirical method of research to interpret and analyse the ideology of “litigants, advocates and judges upon the referral under Section 89”. The aim of the research is to scrutinize the current referral system of the cases to the Alternative Dispute Resolution and perceptions of the basic actors on that system. To conclude the research study, the researcher will analyse that data and based on that analysis the researcher will propose the best suitable recommendations to enrich the referral system under “Sec 89 of CPC” and will also make recommendations for the basic actors so that this referral provision can be used properly which justifies the essence behind this “Section 89 of CPC”.