Dispute Resolution and Court

Topics: Dispute resolution, Alternative dispute resolution, Mediation Pages: 10 (4050 words) Published: May 15, 2012
Critical Analysis of the Case of Salem Advocates Bar Association v. Union of India. (2005) 6 SCC 344 Facts of the Case
The present case Salem Advocate Bar Association v. Union of India[1] is basically an aftermath of the original case Salem Advocates Bar Association, Tamil Nadu. v. Union of India[2]. The Honorable Judges presiding over the case were Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee. The subject is basically related to Constitution and is a case of civil nature. In the former case there were certain amendments made to Code of Civil Procedure, 1908 by the Amendment Acts of 1999 and 2002.The following amendments were made: (i) In Section 26(2) and Order 6 Rule 15(4) of Code of Civil Procedure, 1908 in this the affidavit filed under Section 26(2) and Order 6 Rule 15(4) would not be evidence for purpose of trial. (ii) Written statement – Order 8 Rules 1 and 10 of Code of Civil Procedure, 1908: There was a limitation for filing written statement. There was restriction regarding extension of time for filing written statement. It was held that the limitation provided under Rule 1 is only directory and finally Court empowered to extend time limit in exceptional cases. (iii) Execution of decree – Section 39 (4) and Order 21 Rules 3 and 48: Section 39 does not authorize the Court to execute decree outside its jurisdiction but it does not dilute other provisions giving such power on compliance of conditions stipulated therein. Order 21 Rules 3 and 48 would not be affected by Section 39(4). (iv) Sale of attached property - Sections 64 (1) and 64 (2) of Code of Civil Procedure, 1908: Sale of attached property on basis of registered contract such a sale is protected under Section 64(2).But the protection is available only to sale affected in pursuance of contract entered prior to attachment. Sale on basis of unregistered contract not protected under Section 64 (2). (v) Notice – Section 80 of Code of Civil Procedure, 1908 – Central and State Governments directed to appoint an Officer in charge of replying notices received by it under Section 80 or under other similar provisions .In case notice has not been replied or reply is evasive and vague and has been sent without proper application of mind. Court shall ordinarily award heavy cost against Government and direct it to take appropriate action against concerned Officer including recovery of costs from him. (vi) Alternative Dispute Resolution – Section 89 of Code of Civil Procedure, 1908 and Sections 82 and 84 of Arbitration and Conciliation Act, 1996: Procedure for option to arbitration among four ADRs is not contemplated by Act of 1996.Under Sections 82 or 84 no application where parties agree to go for arbitration under Section 89.The act of 1996 would apply only from stage after reference and not before stage of reference if reference to arbitration made under Section 89 - Judge who makes reference not disqualified to try suit afterwards if no settlement is arrived at between parties. The former case which created the abovementioned amendments was rejected by this Court but it was noticed in the judgment that modalities have to be formulated for the manner in which section 89 of the Code and, for that matter, the other provisions, which have been introduced by way of amendments, may have to be operated. For this purpose, a Committee headed by a former Judge of this Court and Chairman, Law Commission of India (Justice M. Jagannadha Rao) was constituted so as to ensure that the amendments become effective and result in quicker dispensation of justice. It was further observed that the Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the Alternate Disputes Resolution (ADR) referred to in section 89. It was also observed that the model rules, with or without modification, which are formulated may be adopted by the High Courts concerned for giving effect to section...
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