Course: Law of Civil Procedure
Lecture-12
Topic: Section 89A-89E ; Order 40 of the CPC
Edited by: Shamim Ahmed, LL.B student, Department of Law at Comilla University.
★APPOINMENT OF RECEIVER UNDER ORDER XL OF THE CODE OF CIVIL PROCEDURE, 1908
@Introduction:
The object and purpose of appoint of receiver may generally be stated to be the preservation of the subject matter of litigation pending for judicial determination of the rights of the parties. It must be with the dominant object to prevent the ends of justice from being defeated. The rule empowers the court to appoint a receiver for the proper management of any property which is subject matter of the suit. The receiver is appointed for the benefit of all concerned; he is a representative of the court and all the parties interested in the litigation where in he is appointed. He is supposed to be an impartial person appointed by the court to manage the property in suit during the pendency of the suit when the court is satisfied none of the parties to the suit should be allowed to manage it. A receiver is not being appointed unless there is some substantial background for such interference. In Code of Civil Procedure the appointment of receiver has great importance.
@Definition of Receiver:
The word ‘Receiver’ has been defined by Kerr as follows:- “A receiver in an action is an impartial person appointed by the Court to collect and receive, pending the proceedings, the rents, issues and profits of land, or personal estate, which it does not seem reasonable to the Court that cither party should collect or receive, or for enabling the same to be distributed among the persons entitled.” (Kerr on the Law and Practice as to Receivers appointed by the High Courts of Justice or order of Court, Twelfth Edition, Walton and Sarson, Special Edition for India, N. M. Tripathi & Co. (1932) P. L). See. Krishnaswamy Chetty v. C. Thangavelu Chetty, AIR 1955 Mad 430.
*Two classes of receivers can be appointed by Courts:-
Two classes of receivers can be appointed by Courts, viz., (a) under the statutes and (b) under the Civil Procedure Code, the Specific Relief Act and the Original Side Rules of the High Court. See. Krishnaswamy Chetty’s case (supra).
*Appointment of receiver by Court under statutes:-
Several statutes in India like the Provincial Insolvency Act (5 of 1920) (Sections 20, 57, 59 and 68), the Presidency Towns Insolvency Act (3 of 1909) (Section 16) the Transfer of Property Act (4 of 1882) (Section 69-A), the Trustees’ and Mortgagees’ Powers Act (28 of 1866) (Sections 12 to 19) and the Indian Companies Act (7 of 1913) (Sections 118, 119, 129 and 277E) authorise Courts for appointing receivers under the particular circumstances set out therein. …”
*Appointment of receiver by Court under the Civil Procedure Code, the Specific Relief Act and the Original Side Rules of the High Court:-
The second class of Receivers arc included in these in which appointment is made to preserve the property pending litigation to decide the rights of parties. The powers to appoint a Receiver in such cases are comprised in the Civil Procedure Code of 1908 (Sections 51, 94 and Order 40), the Specific Relief Act of 1877 (Section 44), and the Original Side Rules of High Courts relating to Receivers.”
@Appointments of Receivers (Rule-1)
Where it appears to the Court to be just and convenient, the Court may by order—
a) Appoint a receiver of any property, whether before or after decree;
b) Remove any person from the possession or custody of the property;
c) Commit the same to the possession, custody or management of the receiver; and
d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.
Appointment means the designation of a person such as a no elected public official, for a Job on duty or a formal arrangement to meet on visit some one at a particular time and place. And receiver means a disinterested person appointed by a court for the protection on collection of property that is the subject of divers, claims. So, we can say that appointment or receiver means, receiver is on officer of the court to whom is given the possession custody and management of a property, he is the custodian of the property and is liable to render accounts to the court and he functions under the direction of the court.
The receiver is appointed for the benefit of all concerned. He is the representative of the court and of all parties interested in the litigation, wherein he is appointed. In other words, Receiver who was given power to collect outstanding and to do all things necessary for the realization and preservation of the assets of a firm had to authority to mortgaged the property. But a receiver of mortgaged properties with power of realization, management, protection, presentation and improvement has a discretionary power of sale.
Appointment of Receiver is the right arm of the court in exercising the Jurisdiction involved in such cases for administrating the property, the court can only administer through a receiver. For this reason all suits of collect on obtain possession of the property must be prosecute by the receiver and the proceeds received and controlled by him alone. The primary duty of a receiver over leasehold is to discharge head rents out of sub rents.
@Who can be appointed as Receiver?:
Basically there is a no inflexible rule that a party to the suit should not be appointed receiver. But it is desirable not to do so. The Calcutta High Court observed, it is a settled rules that one of the parties to a cause shall not be appointed receiver without the consent of the other party unless a very special case in made out. However, where it is found that the defendants conduct is not absolutely straight foreword and above board thus giving sufficient justification to the plaintiff to urge that he has no more any confidence in his honesty and integrity the defendant was allowed to be a joint receiver of the dispute property along with a third person. On the other hand, be exceptional circumstances in which it may be just and convenient to appoint a party as a receiver.
*Joint receiver:
As a general rule appointment of more than one receiver whether by the same or a different court is not to be preferred. When a receiver is appointed by one court to take charge of certain properties, another receiver by a different court should not be appointed is respect of the same properties without leave of the former court. But where bona fide of the receiver is suspect, the court may appoint a joint receiver.
*Discretion of the Court:
The rule confers wide discretion to the court and appointment of receiver can not be claimed as a matter of course.Such discretion must be exercised very sparingly as it takes away certain property out of the possession of parties litigating against each other.The discretion conferred by this rule must be exercised after consideration of the whole of the circumstances of the Case. The discretion of the court is not absolute arbitrary on unregulated and it must be exercised on sound Judicial principles after taking all the circumstances of the case for the purpose of serving the ends of justice and protecting the rights of all the parties interested in the controversy, Long it is found that the discretion has been properly exercised by the trail court, the appellate court will not interfere with exercise of the discretion. In exercise of this discretionary power, the court has to state the circumstances under which the appointment of a receiver was consider just and convenient. So for as the need for or desirability of appointing the receiver and granting of injunction the court should take into account the over all necessity to balance the interested of the contending parties.
The court can appoint a receiver in a particular suit by consent of the parties but mostly the special circumstances must be proved. In such case before the court takes a property into its custody through its officers, the parties must be willing to extend to the receiver financed and all other necessary assistance which is needed for the subsequent custody and disposed of the goods.
@Principles governing appointment of receiver:
To following principles have been laid down for the counts to consider while deciding the question of appointment of receiver-
The appointment of receiver is discretionary with the court.
It is protective relief. The object is preservation of the property is dispute pending judicial determination of the right of the parties to it.
A receiver should not be appointed unless the plaintiff prima facie proves that he has very excellent chance of succeeding in the suit.
It is not of the harshest remedies which the law provide for the enforcement of the rights and therefore should not be lightly resorted to since it deprives the opposite party of possession of the property before a final judgment is pronounced, it should only be granted for the prevention of manifest wrong or injury. (A court will never appoint a receiver merely on the ground that it will do harm.
Generally on order appointing a receiver will not be made where it has the effect of depriving the defendant of a de factor to possession since that might cause irreparable loss to him. But if the property. Shown to be in media, that is to say in enjoyment of no one. It will be the common interest of all the parties to the suit to appoint a receiver.
The court should look at the conduct of the party who makes on application for appointment of a receiver. He must come with clean hands and should not have dis-entitled himself to this equitable relief by latches, delay on acquiescence.
@Scope and Application:
The receiver is appointed for the benefit of all concerned, he is a representative of the court and of all parties interested in the litigation where is he is appointed (Faiz Ahmed V. Bakhtear Ahmed 36 DLR (AD) 97) He is supposed to be an impartial person appointed by the court to manage the property is suit during the pendency of the suit when the court is satisfied that more of the parties to the suit should be allowed to manage it. That means the object and purpose of appointment of receiver may generally be stated to be the preservation of the subject matter of the litigation pending judicial determination of the right of the parties. (Ma Hnin yeik V. KARK Chettyar, AIR 1939 Rang 321) It must be with the dominant object to prevent the ends of justice form being defected. In taking any action under this rule, it is the duty of the court to see that the rights of the parties are not jeopardized and the ends of justice not defeated. The rule empowers the court to appoint a receiver for the proper management of any property which is subject matter of suit.
@When receiver may be appointed:
The expression before or after decree in clause (a) rule I order 40 shows that the court can appoint a receiver even after passing of decree in an appropriate case. A receiver may be appointed after passing of mortgage a decree where it is necessary decree for sale (Pashumarthi central Bank AIK 1980 AP 283) A receiver can be appointed even after passing of a decree where it is necessary to safeguard the interest of the decree holder (Nur Mohammad V. KA Gani 27 DLR 503). Even though the remedy by way of execution is available (Remaswami V. Ramaswami AIR 1964 Mad 39) where proceedings subsequent to the preliminary decree are pending in the trial court, it can appoint receiver (Ram chandra V Jeetmal AIR 1962 MP 380] A receiver can be appointed during the pendency of appeal (Shamsuddin V. Bangladesh 45DIR 675]
@Receiver in Various cases:
Appointment of receiver is one of the harshest remedies. It will be made only when a property is exposed to manifest peril of waste, damage or alienation (Ram Kishore V. Balaram, AIR 1978 pat 210]. Before passing an order appointing receiver, the court must state the circumstances in which such appointment is found necessary. A plaintiff applying for appointment of receiver must show that he has a strong case and good title to the property, [SB Industries V United Bank, AIR 1978 All 189 (the plaintiff must established a reasonable possibility that he will ultimately succeed in obtaining the relies claimed in the suit); Ram kishore V. Balarm, AIR 1978 pat 210 has a special equity in his favour. (Srinivas Babura Air, 1970 Mys 141] and the property in the hands of the defendant is in danger of being wasted. However, receivers in various cases are as follows:
*Mortgage suit: A receiver may be appointed in a suit on a simple mortgage (Krishna V, Maharaja, and AIR 1956 MB 44]. the appointment of a receiver after preliminary decree in a simple mortgage on equitable mortgage with a direction to deposit to the credit of the suit the rents and profits from the mortgaged property does not amount to a charging order in favors of the mortgagee. The court has power to give directions as to the disbursement of the money received and such directions may also be for the benefit of the mortgagor [Collector V Trinity Bank, 19612 ML 398/ A receiver may be appointed in a mortgage suit for safeguarding the interest of the mortgagee even after a decree for sale (Kshitish V Janaki, 35 CWN 1141]. When the mortgagor got possession of the property by a lease and owed heavy amount of rent and interest a receiver should be appointed in a suit filed by the mortgagee (Bhawariram V Mohammad Hossain AIR 1955 MB 199] Where the security has diminished by the actor default of the security has diminished by the act on default of the mortgagor or is apparently insufficient to cover the entire dues of the mortgagee the executing court may appoint a receiver. A receiver may be appointed at the instance of a simple mortgagee or equitable mortgagee. If the interest is in arrears it may be just and convenient to appoint a receiver though the security is sufficient (Venkamma V. Mangamma, AIR 1936 Rang 296].
*Partnership suit: If the partnership is sought to be dissolved in a suit on is dissolved under the order of the court, a receiver can be appointed to take charge of the assets of the partnership. [Khaderan V. Sharida, AIR 1988 All 34]. Is the partnership has been dissolved on is sought to be dissolved by the filling of the suit, a receiver can be appointed as a matter of course provided his appointment is sought for taking of the assets of the firm and ultimately for distribution there of to the partners, and the relationship between the partners is extremely strained. [Khaderan V. Sharda AIR 1986 All 34] the appointment of a receiver in respect of a dissolved partnership is in the discretion of the court and in the exercise of the discretion the court will be guided by the consideration of preserving and protecting the property and assets of the firm and will not permit it to be dissipated or used by one partner exclusively to the detriment and manifest disadvantages of other partners who are excluded from such property on assets.
*Suit for possession: Generally a receiver should not be appointed in a suit for possession [Kumiruddin V. Moksed Ali, 48 DLR (AD) 14. But if the circumstances so require, receiver may be appointed for the disputed properties in a suit for possession. [Aktaruzzaman V. Ali Amjad, So DLR (AD) 199, when a decree holder in respect of a property is prevented from taking possession of the property by an order of injunction at the instance of the judgment debtor, the proper course is to appoint a receiver in respect of the property. [Saliendra V. Steuart, (1981) 2 (6) 26. where the plaintiff applied for appointed of receiver in a suit for declaration of title and recovery of possession and after taking repeated adjournment the defendant failed to submit his written objection the court ought to presume that them is no serious objection to appointment of a receiver and it would be impermissible for a court to require the plaints to prove the facts.
*Partition suit: The court will not a general rule appoint a receiver in a partition suit where the family property consist of immovable property unless the parties consents to it or special circumstances are proved, [ Faiz Ahmed V. Bakhtear Ahmed, 36 DLR (AD) 97] but it will be ordered if there is prima facie case of misappropriation. [Monohar V Kishen, AIR 1938 Lat 10]. Where the members of a family are in a separate possession for a long time under a registered deed of partition, there should not be appointment of receiver even though the deed of partition is challenged as fraudulent, illegal void and not acted upon.
*Rent Suit: A receiver can not be appointed in a suit for rent except where it is sought to enforce forfeiture clause. [ Dharendra V. Surendra, AIR 1930 cal 610] However, a receiver can be appointed to collect rent from the tenants. [Jaya Motion pictures V. Ramakrishman, AIR 1958 ker 303] In a suit for recovery of mesne profits, a receiver can be appointed for collecting crops grown on the lands in possession of the tenants.
*Money suit: If there are extraordinary grounds a receiver can be appointed in a simple money suit.’ The government is entitled to appointment of a receiver to realize tax dues from the assessed company.In suits filed by banks and financial institutions, the court should consider appointment of a receiver where a condition for appointment of receiver is fulfilled.
*Suit for maintenance: A receiver can be appointed of properties charged for maintenance, though no receiver of future maintenance allowance can be allowed. Where decree maintenance and a charge is created on a specified property to secure payment of allowance, a receiver may be appointed to facilitate execution of the decree.
Specific Relief Act, S.9. In a suit for possession under S.9 of the specific Relief Act, the Court is not competent to appoint a receiver. Appointment of receiver in a suit under section 9, Specific Relief Act (1877) without examining whether title of plaintiffs/applicants, was valid and without considering whether it was just and convenient to appoint receiver, would not be sustainable in law.
@Power which may be conferred as a receiver:
A receiver is an officer of the court and he functions under the direction of the court. The court may confer all or any of the following powers to the receiver-
*To institute and defend suits;
*To realize, manage, protect, reserve and improve the property.
*To collect apply and dispose of the rents and profits;
*To execute documents’ and Such other powers as it thinks fit. [Hari nagar sugar mills V. Court Receiver, AIR 1966 Se 1707]. The receiver has no power except that which is conferred upon him expressly or impliedly by the order of the court appointing him. His powers are conditioned by the terms of his appointment. [SB Industries V. United bank AIR 1978 All 189.] It is open to the court not to confer all the power to the receiver once a receiver is appointed under clause (a) of the order 40 rule1, all other clause (a) of the order 40 rule 1, all other clause from (b) to (d) will not automatically apply to his appointment. A receiver who has been given the powers of realization, management and protection of properties under clause (d) will have impliedly discretion any power of sale. A receiver is merely an officer of the court. His holding is the holding of the court and he can do nothing which is likely to seriously diminish the funds of the estate on incur expenditure or impose liability on the estate without the special leave of the court. The receiver must seek the courts direction as regards employment of agents. In the management of an estate, the receiver possesses the power to employ servants but no power to delegate his authority. Whenever the necessity of employing agents or servants it felt, the receiver should apply to the court for its sanction and whenever any difficult is apprehended to seek the directions of the court as otherwise the receiver takes upon himself the onus of proving that whatever he has done as for the benefit of the estate and runs the risk of suit against him for recovery of any loss or damage suffered by the estate. Even it he has been given full power, he has to function taking directions from the court in all important matters if he want to protect himself @Liability of the receiver: A receiver is liable to duly account for the income and the properties which come into his hands and he is responsib1e for any loss occasioned by his willful default or gross negligence. A receiver disregarding the court’s order actuated by his own interest is liable to be removed or committed for contempt. A ‘cannot be prosecuted for criminal breach of trust in respect property without the sanction of the court which appointed him sanction is necessary in respect of other offenses committed by the receiver in his capacity as receiver.But no such ii will be necessary where the offense committed have nothing with the office held by him.
@Liability of the estate in the hands of the receiver: A receiver is not the agent or representative of any party to the suit and the loss from the default of the receiver, subject to the liability of that has to be borne by the estate and not by any party at whose receiver was appointed. However, it has been held that where receiver in execution misappropriates the amount paid by the judgment debtor, the decree-holder and not the judgment-debtor is to bear the loss as the judgment-debtor is absolved when he made, the payment to the receiver. A receiver put in charge of a property for managing it, is ordinarily personally liable in incurred or contracts entered into by him in respect of debts the estate, but he is entitled to indemnify from the estate for such debts.’ But the ordinary rule that the creditors can proceed against the receiver personally cannot apply where the advance has been expressly made on the condition that the estate alone should be liable. A creditor is entitled to proceed against the representative of the estate for the recovery of a debt incurred by management of the estate in as much as the long as they fall within his authority, are estate cannot have the benefit of those corresponding obligations arising out of them obtained a charge on the estate in respect of entitled to a decree personally against the assets of the estate of indemnity as receiver against me estate.
@Attachment of properties in the hands: Property in the hands of the receiver is in law in court and as a general rule is exempt from judicial the extent permitted by the court. The possess cannot be interfered with by taking judicial process except to property without the permission of the receiver execution of a decree by attachment and sale can be taken against a property in the hands of the receiver without the leave of the court. But no leave of the court is necessary for such execution when the receiver is appointed to collect the rents and property.
Rule.2. (Remuneration):
The court may by general or special order fix the amount to be paid as remuneration for the services of the receiver.
Comment: A receiver is entitled to such remuneration as may be by the court for the service rendered by him and he is entitled indemnified for the debts incurred or contracts entered into by in the course of management of the estate under his charge as a receiver. The court is to fix remuneration with reference to the period which the receiver worked and the quantum of work done by 6 An agreement without leave of the court by a party to pay creation to the receiver is contrary to law and such agreement is not enforceable.
Rule-3 (Duties):
Every receiver so appointment shall-
(a) Furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property
(b) Submit his accounts at such periods and in such form as the Court directs;
(c) Pay the amount due from him as the court directs; and
(d) Be responsible for any loss occurred to the property by his willful default or gross negligence.[16]
Rule.4.Enforcement of receiver’s duties:
Where a receiver-
(a) fails to submit his accounts at such periods and in such from the court directs or
(b) Fails to pay the amount due from him as the court directs or,
(c) Occasions loss to the property by his willful default or gross negligence,
Rule-5: When Collector may be appointed as receiver.
Where the property is land paying revenue to the Government or land of which the revenue has been assigned or redeemed and the Court considers that the interest of those connected will be promoted by the management of the Collector, the Court may, with the consent of the Collector, appoint him to be receiver of such property.
@Conclusion:
By looking over the above discussion we can conclude that the receiver is appointed for the benefit of all concerned; he is a reprehensive of the court and all parties of the litigation. A receiver is appointed to maintain the property as it is. The court can appoint receiver in a particular suit with the consent of all the parties. In a Code of Civil Procedure the appointment of receiver has great importance.
★ADR in Civil Procedure of Bangladesh
While criminal law is the body of law that deals with crime and the legal punishment of criminal offenses, civil law deals with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim. All civil proceedings in Bangladesh are regulated under the Code of Civil Procedure, 1908, unless otherwise excluded. The only one exception to the Section 89A(1), which provides that except in a suit under the Artha Rin Adalat Ain, 1990 (Bank loan recovery act).
The Judicial system takes about 20to 30 years to dismiss a suit finally. To recover from this situation, Alternative Dispute Resolution (ADR) has been introduced in the code of civil procedure 2003 by inserting the section 89A and 89B, which empowered the trial court to settle the dispute by ADR including mediation. Again in 2006 a new amendment is brought to provide this power to the Appellate court by section 89C. The mediation has been defined in the amended as follows: (a) “mediation” under section 89A, shall mean flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or dictating the terms of such compromise, (b) “compromise” under this section shall include also compromise in part of the disputes in the suit.
The procedure stated in the law in section 89A(1) that, after filing of written statement, by adjourning the hearing, mediate in order to settle the dispute or disputes in the suit, or refer the dispute or disputes in the suit to the concerned Legal Aid Officer appointed under the Legal Aid Act, 2000 or to the engaged pleaders of the parties, or to the party or parties, where no pleader or pleaders have been engaged, or to a mediator from the panel as may be prepared by the District Judge under sub-section (10), for undertaking efforts for settlement through mediation.
When the reference is made through the pleaders, the pleaders shall, by their mutual agreement in consultation with their respective clients, appoint another pleader, not engaged by the parties in the suit, or a retired judge, or a mediator from the panel as may be prepared by the District Judge under sub-section (10), or any other person whom they may seem to be suitable, to act as a mediator for settlement: Provided that, nothing in this sub-section shall be deemed to prohibit appointment of more than one person to act as mediator. The mediator shall be appointed within ten days (section 89A-4) from the date of reference under sub-section (1) and if the parties fail to appoint the mediator during this time, the Court shall, within seven days, appoint a mediator from the panel as mentioned in sub-section (10) and the mediation under this section shall be concluded within 60 (sixty) days from the day on which the Court is so informed, or the dispute or disputes are referred to Legal Aid Officer, or a mediator is appointed by the Court], as the case may be, unless the Court of its own motion or upon a joint prayer of the parties, extends the time for a further period of not exceeding 30 (thirty) days.
The concerned parties shall determine the fees of pleaders and mediators and the Court shall not dictate or determine the fees etc. It shall be for the pleaders, their respective clients and the mediator to mutually agree on and determine the fees and the procedure to be followed for the purpose of settlement through mediation (section 89A-3). In the situation, if the pleaders and their respective clients and the mediator fail to determine the fees, the Court shall fix the fees and the fees so fixed shall be binding upon the parties. But when the Court shall mediate, it shall determine the procedure to be followed and shall not charge any fee for mediation.
After due mediation, the parties shall inform the Court in writing as to whether they have agreed to try to settle the dispute or disputes in the suit by mediation and whom they have appointed as mediator within ten days from the date of reference under sub-section (1).
If they fail to inform the court within the fixed time which the reference will stand cancelled and the suit shall be proceeded with for hearing by the Court. The decision of the mediator is final. It cannot be challenged by appeal and revision and no appeal or revision shall lie against any order or decree passed by the Court in pursuance of settlement between the parties under section (89A-12).
When the mediation is completed, then the mediators have duties and liabilities those are: All the parties in the mediation have certain responsibilities and liabilities of (1) mediators shall without violating the confidentiality of the parties to the mediation proceedings submit through the pleaders to the court a report of result of the mediation proceedings; and (2) if the result is of compromise of the dispute or disputes in the suit, the terms of such compromise shall be reduced into writing in the form of an agreement bearing signatures or left thumb impressions of the parties as executants; and (3) the pleaders and the mediator shall sign as witnesses and (4) when the Court itself mediates, it shall make a report and passed order in a manner similar to that as stated in sub-section (5 and 6). Then the Court shall thereupon, pass an order or a decree in accordance with relevant provisions of Order XXIII of the Code.
The proceedings of mediation under this section shall be confidential and any communication made, evidence adduced, admission, statement or comment made and conversation held between the parties, their pleaders, representatives and the mediator shall be deemed privileged and shall not be referred to and admissible in evidence in any subsequent hearing of the same suit or any other proceeding. When the mediation fails to produce any compromise, the Court shall subject to the provision of sub-section (9) proceed with hearing of the suit from the stage at which the suit stood before the decision to mediate or reference for mediation in a manner as if there had been no decision to mediate or reference for mediation as aforesaid. If a mediation initiative led by the Court itself fails to resolve the dispute in mediation, the same court shall refer to other competent court hearing and trial.
Mediation at appeal stage also incorporated in the section 89C(1). The Appellate Court shall mediate in an appeal or refer the appeal for mediation in order to settle the dispute or disputes in that appeal, if the appeal is an appeal from original decree under Order XLI, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties.
The provision of mediation in the Code of Civil Procedure has some challenges as well. Section 89A requires the court to refer the suit for compulsory mediation. The mediation may failed due to non-cooperation of parties and their lawyers by way of absence or otherwise. The law does not empower the court with the tools to enforce the co-operation of the parties.
There is no general or specific guideline for the mediators regarding the maintenance of equal participation and opportunity for the parties that may create serious problem in case of power imbalance. The mediation provisions at the pre-trial and the appellate stage but mediation mechanism upon conclusion of the trial before the pronouncement of judgment has not been incorporated into the CPC. The post-trial mediation may prove to be more effective than that of the mediation at the appellate stage. The law makers may prepare a procedural rule under the law to overcome some of the loopholes of the law.
★ Section 89( A-E) of CPC: Inaccessibility to the Formal Justice System of Bangladesh and A Flexible Approach towards the Process of Mediation
@Introduction
Recent developments in Bangladesh reflect a change towards out-of-court NGO-based mediation. It is an improved variation of the traditional salish conducted by village elites to resolve various disputes that arise in their respective localities. Here, the whole process from the filing of the complaint to the documentation of the mediation decision is moderated and facilitated by NGO staff.
Bangladesh is a country where there are numerous cases pending before various courts. The backlogs and delays in our courts, have reached such a proportion that it effectively denies the rights of citizens to redress their grievances, especially of the poor people. It has become an instance of injustice, a violation of human rights. While praying for justice, the parties become part of a long protracted and torturous process, not knowing when it will end. Another important factor that hinders people’s access to justice is the cost of the dispute resolution process. Cost is important because we live in a system in which money often matters more than merit. People silently bearing the agonies and burns of injustice done to them in various spheres of life without any legal relief is something that is witnessed frequently.
@Mediation and Problems in the Formal Justice System:
Mediation is an alternative dispute resolution process which is growing rapidly in Bangladesh. It is chosen to address disputes by way of a voluntary procedure with the aid of a neutral facilitator who helps the parties in reaching a settlement that is satisfactory to all the concerned parties involved in the dispute. It is cost-effective and less time-consuming, unlike court litigations. There is no judge and hence, no one is there to impose any decision. It is the parties who decide the outcome. One of the most important rules in mediation is that the whole process is entirely confidential and no offer, concession or admission made by any party can be used up until a settlement is reached.
However, it is still not approached widely by the mass people and as such, they continue to suffer because of the court based complex litigation process. According to Article 27 of the Constitution of the People’s Republic of Bangladesh, “All citizens are equal before law and are entitled to equal protection of law”. Most of the Bangladeshi people cannot even afford to reach the doors of law and derive any benefits of their services.
Sometimes, the cost of litigation is further increased by the cost of bribes. For instance, in Bangladesh, most parties (63 percent) have no option but to bribe court officials to accelerate the disposal of their cases. Sometimes, the costs are exacerbated due to delays. As the disposal of cases is delayed, total charges paid to the lawyers increase with consecutive court appearances. According to Transparency International Global Corruption Report 2007, there are only 77 Supreme Court Judges and 750 Subordinate Court Judges to dispense justice to a population of nearly 150 million people in Bangladesh.
Therefore, we can see that only 5.5 judges in the lower judiciary serve every million people.
The lesser accessibility to formal justice affects women in Bangladesh even more because women are at a decided disadvantage in their access and control of material resources, mainly because of their lower educational attainment and lesser involvement in income-generating activities.
Considering all these limitations of the formal court system and the socioeconomic context of Bangladesh, mediation is considered a promising alternative for ensuring access to justice, especially for the poor and women. This informal method can minimize the financial burden and ensure timely justice, without creating excessive delays. If we emphasize more on women, then it can be seen that mediation allows women to access justice without violating their social values in Bangladesh since it allows women to discuss their personal family matters in the entirely confidential mediation sessions which they otherwise would opt not to discuss because of the conservative nature of our society.
Like India, the history of panchayat/salish plays a vital role in governing informal and traditional dispute resolution system in this region. It is not a recent phenomenon in Bangladeshi culture, rather a customary practice of the informal justice system that has a history of more than a thousand years. Thus, it is not unlikely that the evaluative nature of traditional dispute resolution system conducted in out-of-court settings might also have some influence on our current day to day practice of court-annexed mediation in Bangladesh.
The justification of practicing evaluative mediation in court-connected mediation can be observed in the words of K.M. Hasan. He said, “We found that for the present pure mediation in every case is not really suitable for our legal system. It took many years for the USA to reach the present stage through trial and error. Our experience is only a few months old. Slowly it dawned on us that instead of pure mediation if it is combined with a little bit of directive method, to which our judges, lawyers and litigants are familiar with, the judges would be more successful in their efforts.”
Furthermore, K.M. Hasan noted, “Learn from the pilot courts and the lawyers involved in mediation and other methods what practical problems they encounter, adjust and re-adjust your programme accordingly so that what finally emerges is not a foreign model, but an indigenous Bangladeshi model suited to the legal culture, ethics and traditions of this country.”
@NGO-based Mediation in Bangladesh
Recent developments in Bangladesh reflect a change towards out-of-court NGO-based mediation. It is an improved variation of the traditional salish conducted by village elites to resolve various disputes that arise in their respective localities. Here, the whole process from the filing of the complaint to the documentation of the mediation decision is moderated and facilitated by NGO staff.
The Madaripur Legal Aid Association (referred to hereafter as MLAA) established in 1978 is considered to be the pioneer in the introduction of NGO-based out-of-court mediation in Bangladesh. To provide mediation services, MLAA formed a mediation committee with the Chairman and members of the Union Parishad (Council) and the committee also included other local elites. Since its establishment, MLAA is not only resolving local disputes through mediation, but it is also giving trainings to the local leaders and elites to change their attitudes towards the use of law whilst conducting salish at the local level.
Bangladesh Legal Aid and Services Trust (referred to hereafter as BLAST) is another organization which is running legal awareness programs and public interest litigations to establish rights in various sectors including labour law, family law, state abuse of prisoners etc.
Ain-o-Salish Kendra (referred to hereafter as ASK) provides mediation services as well as works towards curbing violation of women’s rights through its ‘Gender and Social Justice Project’.
Nagorik Uddayog (referred to hereafter as NU) started out-of-court mediation in 2004. In the process of doing so, NU conducts salish with the initiatives of local government representatives that not only increases the abidance of salish but also makes women more active.
Generally, respondents approach nearby NGOs after getting a notice for settling the dispute. If a settlement is reached, the NGO mediators note down all the terms and conditions and read it aloud for the parties. Afterward, the signatures of all the parties, witnesses and mediators are taken.
The success rate in mediation varies among NGOs. MLAA and ASK are attaining much higher success rate in mediation in comparison to others. A look at family complaints resolved through MLAA mediation from July 2015 to June 2016 shows that out of 3503 disputes that were available for mediation, 3040 disputes were resolved through mediation after all rejected cases.
@Provisions Relating to Mediation in Existing Laws
Recently, the provision for mediation has been inserted in the Legal Aid (Amendment) Act, 2015 where before filing a case with the help of government legal aid, it is suggested to resolve the dispute via mediation. 75% of the cases applied for legal aid at the pre-trial stage are resolved through pre-legal aid mediation now.
There is also Bangladesh International Arbitration Centre (referred to hereafter as BIAC). It has its own BIAC Mediation Rules, 2014 and Code of Conduct, 2014. It has one suggested Med-Arb clause, which says — “Any dispute arising with this contract, shall first be referred to BIAC for settlement through mediation in accordance with BIAC Mediation Rules. If a settlement cannot be reached, then such dispute shall be referred to BIAC to be finally settled under the rules of arbitration of the Bangladesh International Arbitration Centre”. In addition, there is one separate BIAC Mediation Clause, which says any dispute arising with this contract shall be referred to BIAC for settlement through mediation in accordance with BIAC Mediation Rules before such dispute is submitted to court or arbitration.
Bangladesh International Mediation Society (referred to hereafter as BDIMS) also provides a mediation service to help resolve civil and commercial disputes of both domestic and international nature. Its Code of Conduct binds BDIMS-affiliated Mediators to confidentiality obligations. BDIMS is the first international mediation institute of Bangladesh.
The mediation mechanism has become a part and parcel of our formal legal ystem. Moreover, there are provisions relating to mediation of disputes in the statutory laws of Bangladesh now. The Code of Civil Procedure 1908 (referred to hereafter as CPC) was amended to give effect to mediation. Mediation is described in Section 89A of CPC under Explanation (1) as a “flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or dictating the terms of such compromise.” Section 89C provides for scope of mediation in Appellate Court.
Chapter V of Artha Rin Adalat Ain, 2003 provides for settlement of any dispute through mediation. Section 22 of the Artha Rin Adalat Ain, 2003 talks about the settlement conference after the filing of the written statement.
There is also the Family Court Ordinance, 1985. After the filing of the written statement, the Family Court shall fix a date for a pre-trial hearing of the suit. On the date fixed for the pre-trial hearing, the Court shall try to compromise or go for reconciliation between the parties.
In the Village Court Act, 2006, it is stated that after the formation of the Village Court, the Court shall hear both the parties and decide the issues between them. Thereafter, the Court shall take the initiative for conciliation between the parties.
Moreover, Section 22 of Arbitration Act also provides for the scope of ‘mediation’. According to this Act, mediation procedure can be followed at any stage of arbitration upon the consensus of all parties. At the time of continuation of the dispute, if the parties resolve the matter amicably and request the tribunal regarding this, the Arbitration Tribunal shall record the consensus of the decision as ‘award’ of the Tribunal.
MLAA mediators have suggested some necessary changes in the laws and other infrastructural changes that can make NGO-based mediation more effective. There is also a growing fear among lawyers regarding the adverse effect of mediation, suspecting that cases being resolved quickly would reduce the number of practicing lawyers and consequently the amount of fees to be collected from the clients.[12] Additionally, it can be seen that the resources allocated are not being utilized efficiently in the mediation process.
The strategies provided by the Reform Movement, 2000, such as — judges’ training on mediation, incentives for judges to practice mediation, motivation for lawyers, binding mediation through court decrees, etc. have amounted to a high rate of disposal of cases. Although the process is not much successful in other civil courts, after the impressive success of mediation in family courts, mediation was gradually included in various other civil laws in Bangladesh such as Code of Civil Procedure (CPC) following an amendment in 2012.
@Conclusion
From the analysis made above, it can be concluded that mediation is still a developing concept as an alternate dispute resolution mechanism in Bangladesh. Despite its limitations, it can be said that it is playing a vital role in ensuring justice to the public. With the courts of Bangladesh being flooded with an overwhelming number of claims, it is perhaps about time that we appreciate this concept of alternative dispute resolution and take appropriate steps to facilitate mediation not merely by bringing amendments in the laws but also enforcing them properly in the future. It should not be denied that with the increasing number of NGO mediations, court-connected mediations and law provisions regarding mediation Bangladesh is surely going to have a bright future in resolving disputes through mediation.
The End
Shalbon Law Review 