Courts need not obtain consent of parties to refer matters to Lok Adalat, mediation: Karnataka High Court

The Karnataka High Court recently held that courts need not obtain the consent of parties before referring a particular matter to either Lok Adalat or Mediation as per under section 89 of the Civil procedure Code [CPC]. [Amalapooh Mary and Ors vs V Ravindra and Anr].In this regard, Justice Suraj Govindaraj placed reliance on the judgment of the Supreme Court in Afcons Infrastructure Ltd. & Anr. v. Cherian Varkey Construction Co. (P) Ltd. & Ors.."In terms of paragraph 36 of Afcons judgment, the consent of the parties is not required for referring the parties to ADR process of Lok Adalat, Mediation or judicial settlement. Thus, it is not required for the Court to seek for and obtain the consent of either lawyer appearing for the parties in a particular matter or the parties, but the Court ought to suo moto refer the matter to either Lok Adalat or Mediation by virtue of the mandate of Section 89 of CPC and dicta laid down in Afcons judgment," the High Court said..Further, the Court also relied on Rule 13 of the Karnataka Civil Procedure (Mediation) Rules, 2005. "In view of Rule 13 of the Mediation Rules, 2005, it is no longer permissible for either counsel or the party in a proceeding to refuse participation in mediation proceedings, if at all a party were to absent himself, the Court could impose costs as also repeated costs until the party were to appear and participate in the mediation proceedings.".The Court was hearing a petition filed by Amalapooh Mary and others challenging a city civil court’s order, refusing to extend the time for mediation, thereby giving it less than 60 days for initial mediation, in contravention of the provisions the Karnataka Civil Procedure (Mediation) Rules, 2005..Advocate BC Thiruvengadam appearing for the petitioner, submitted that the trial court's order was neither in compliance with the decision of the Supreme Court in Afcons Infrastructure nor the Mediation Rules of 2005.Advocate NR Jagadeeshwara counsel for respondent, had earlier submitted that the respondents were not willing to participate in the mediation proceedings..After examining the contentions of the parties, the High Court said that while fixing time for mediation, courts would have to fix the time period from the date of first appearance of the parties before the mediator, giving a clear 60 days time for mediation.However, the time taken for administrative purposes such as transfer of file from the respective courts to mediation centre, appointing a mediator etc has to be excluded from the 60 days period, the High Court clarified. .With regard to Rule 18 of the Mediation Rules, 2005, it was noted that the time period of 60 days would commence only from the time of first appearance before the Mediator."Rule 18 of the Mediation Rules, 2005 also provides for all Courts to either suo moto or upon the request of the mediator or any of the parties to extend the period of time by another 30 days, but not beyond a period of 30 days.".Further, the Court said that in the event that parties do not appear for mediation as per court’s reference, the courts could exercise powers under Rule 13 of the Mediation Rules, 2005, and impose costs as it may deem fit to compel the attendance of the parties. .With regard to the present case, the Court noted the trial court fixed less than 30 days from the date of reference for completion of mediation. Subsequently, the Court did not extend the time even though a memo was filed by parties for extension. .The High Court was of the view that this was contrary to the mandate of Rule 18 of Mediation Rules, 2005 and against the spirit of the process of mediation..With these observations, High Court set aside the order of the Trial Court. .The parties were also directed to appear before the Director, Bangalore Mediation Centre on September 3. The Court also ordered the Registrar (Judicial) to send a soft copy of the judgment in Afcons' case, and a copy of the present judgment to all judicial officers as well as mediators..[Read Order]