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2014 DIGILAW 1208 (HP)

Jiwan Lal Sharma v. Kashmir Singh Thakur

2014-09-06

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. This petition is instituted against the order dated 28.12.2013, rendered by the learned Civil Judge (Sr. Divn.) Shimla, H.P., in Civil Suit No. 218-1 of 2010. 2. Key facts, necessary for the adjudication of the petition are that the petitioner (hereinafter referred to as the plaintiff ) has filed a suit against the respondent-defendant (hereinafter referred to as the defendant) for permanent prohibitory injunction restraining the defendant from forcibly occupying and raising construction work over the best portion of three storey building as detailed in the plaint. The defendant filed the written statement and contested the claim of the plaintiff. The plaintiff also moved an application for grant of ad-interim injunction. The trial Court vide order dated 5.5.2011, directed the parties to maintain status quo. The defendant challenged the order dated 5.5.2011 before the learned District Judge, Shimla. The appeal was dismissed by the learned District Judge on 18.8.2012. The trial Court during the pendency of the Civil Suit, under Section 89 of the Code of Civil Procedure and the Rules framed by this Court, with the consent of the parties, referred the matter to the Mediator for resolving the dispute between the parties. Sh. Pawan Thakur, Advocate, was appointed as Mediator vide order dated 4.1.2011. The Deed of Settlement was prepared on 11.1.2011. The parties signed the Deed of Settlement (Annexure P-4). The Mediator submitted the report dated 12.1.2011 to the learned trial Court. The defendant filed objections to the settlement vide Annexure P-6 dated 21.2.2011. The plaintiff filed reply to the objections vide Annexure P-7 dated 3.5.2011. The trial Court passed the order dated 28.12.2013. The learned Civil Judge (Sr. Divn.), Shimla, came to the conclusion that the compromise arrived at between the parties through mediation was not binding upon the parties and the objections were also not maintainable. The learned Civil Judge (Sr. Divn.), Shimla, listed the matter for framing of issues on 4.3.2014. In these circumstances, the plaintiff has filed the present petition challenging the order dated 28.12.2013. 3. I have heard the learned Senior Advocates for the parties and gone through the pleadings and impugned order carefully. 4. The trial Court has erred by holding that the time limit for completion of the mediation in the instant case has expired. In these circumstances, the plaintiff has filed the present petition challenging the order dated 28.12.2013. 3. I have heard the learned Senior Advocates for the parties and gone through the pleadings and impugned order carefully. 4. The trial Court has erred by holding that the time limit for completion of the mediation in the instant case has expired. The learned trial Court has quoted Section 6 of the Civil Procedure Mediation Rules, 2005 (hereinafter referred to as the Rules), while coming to this conclusion. Infact, it is Rule 18 of the Rules, which prescribes that on the expiry of sixty days from the date fixed for the first appearance of the parties before the mediator, the mediation shall stand terminated unless the Court which referred the matter enter suo motu or upon request by the mediator or any of the parties, and upon hearing all the parties, is of the view that extension of time is necessary or may be useful, but such extension shall not be beyond a further period of thirty days. The order was passed by the learned trial Court referring the matter to the Mediator on 4.1.2011. The Deed of Settlement was prepared on 11.1.2011. The Mediator submitted the report dated 12.1.2011 to the trial Court. 5. According to Rule 17 of the Rules, the parties must understand that the Mediator only facilitates in arriving at a decision to resolve disputes and that he would not and cannot impose any settlement nor does the Mediator give any warranty that the mediation will result in a settlement. The Mediator cannot impose any decision upon the parties. In the instant case, the parties have arrived at a settlement on 4.1.2011. They have signed the statements. The report, as noticed hereinabove, was furnished to the trial Court by the Mediator on 12.1.2011. According to Rule 24, where an agreement is reached between the parties in regard to all the issues in the suit or some of the issues, the same is to be reduced in writing and signed by the parties or their power of attorney and if any counsel have represented the parties, they are required to attest the signature of their respective clients. The agreement of the parties duly signed and attested is to be submitted to the Mediator who shall, with a covering letter signed by him, forward the same to the Court where the suit is pending. The trial Court, as per sub rule (1) of Rule 25, within 7 days of the receipt of any settlement, is required to issue notice to the parties fixing a date for recording the settlement and such date should not be beyond a further period of 14 days from the receipt of the settlement. Thereafter, as per sub rule (2) of Rule 25, the Court is required to pass a decree in accordance with the settlement so recorded if the settlement disposes of all the issues in the suit. The trial Court has not followed Rule 25 of the Rules. There is no provision for filing the objections against the settlement which is arrived at between the parties duly signed by them. The only requirement after the receipt of the settlement is that the Court, which is seized of the matter, shall issue notice to the parties fixing date for recording the settlement. The defendant has not raised any objection at the time of settlement dated 11.1.2011. The trial Court immediately after the completion of the formalities required under Rule 24, was to take necessary steps as provided under Rule 25, by giving notice and hearing the parties to effect compromise and pass a decree in accordance with the terms of settlement accepted by the parties. 6. Their lordships’ of the Hon’ble Supreme Court in the case of Salem Advocate Bar Association, T.N. vrs. Union of India, reported in (2005) 6 SCC 344 , have held that Section 89(2)(d) only means that when mediation succeeds and parties agree to the terms of settlement, the Mediator will report to the Court and the Court, after giving notice and hearing to the parties, “effect” the compromise and pass a decree in accordance with the terms of settlement accepted by the parties. Their lordships’ have further held that when the parties come to a settlement upon a reference made by the Court for mediation and the parties want the same, there has to be some public record of the manner in which the suit is disposed of and, therefore, the Court must first record the settlement and pass a decree in terms thereof and, if necessary, proceed to execute it in accordance with law. If the parties do not want the Court to record a settlement and pass a decree, there will be no public record of the settlement. Their lordships’ have held as follows: “57. A doubt has been expressed in relation to clause (d) of Section 89(2) of the Code on the question as to finaliasation of the terms of the compromise. The question is whether the terms of compromise are to be finalized by or before the mediator or by or before the court. It is evident that all the four alternatives, namely, arbitration, conciliation, judicial settlement including settlement through the Lok Adalat and mediation are meant to be the action of persons or institutions outside the court and not before the court. Order 10 Rule 1-C speaks of the “Conciliation Forum” referring back the dispute to the court. In fact, the court is not involved in the actual mediation/conciliation. Clause (d) of Section 89(2) only means that when mediation succeeds and parties agree to the terms of settlement, the mediator will report to the Court and the Court, after giving notice and hearing to the parties, “effect” the compromise and pass a decree in accordance with the terms of settlement accepted by the parties. Further, in this view, there is no question of the court which refers the matter to mediation/conciliation being debarred from hearing the matter where settlement is not arrived at. The Judge who makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be a settlement, and on that ground he cannot be treated to be disqualified to try the suit afterwards, if no settlement is arrived at between the parties. 62. The Judge who makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be a settlement, and on that ground he cannot be treated to be disqualified to try the suit afterwards, if no settlement is arrived at between the parties. 62. When the parties come to a settlement upon a reference made by the court for mediation, as suggested by the Committee that there has to be some public record of the manner in which the suit is disposed of and, therefore, the court has to first record the settlement and pass a decree in terms thereof and if necessary proceed to execute it in accordance with law. It cannot be accepted that such a procedure would be unnecessary. If the settlement is not filed in the court for the purpose of passing of a decree, there will be no public record of the settlement. It is, however, a different matter if the parties do not want the court to record a settlement and pass a decree and feel that the settlement can be implemented even without a decree. In such eventuality, nothing prevents them in informing the court that the suit may be dismissed as a dispute has been settled between the parties outside the court.” 7. Accordingly, order dated 28.12.2013 is set aside. The trial Court is ordered to proceed with the matter strictly as per Rule 25 of the Civil Procedure Mediation Rules, 2005, by issuing notice to the parties and after hearing the parties effect the compromise and pass a decree in accordance with the terms of the settlement arrived at between the parties.