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Whether court can Strike off Defence of party if he fails to appear before Mediator?

IN THE HIGH COURT OF KARNATAKA

W.P. No. 2208/2009 (GM- CPC)

Decided On: 16.04.2010

Rudraaradya
Vs.
Nanjundappa @ Nanjundaswamy and Anr.

Hon’ble Judges/Coram: B. Manohar, J.

Citation: ILR 2011Kar 221

1. Petitioners are Defendants in the suit in O.S. No. 1649/2006. Being aggrieved by the order dated 3-1-2008 passed by the Principal Civil Judge (Sr. Dn.) at Bangalore, wherein the Learned Civil Judge has struck off the defence of the Defendants for non-appearance before the Mediator when the case was posted for the mediation, the Petitioners have filed this writ petition.

2. The facts of the case are as follows:

The Plaintiffs had filed O.S. No. 1649/2006 seeking for declaration declaring that the alleged sale deed dated 5-6-2006 executed by the first Defendant in favour of Defendants 2 and 3 as null and void and it is not binding on the Plaintiffs and also sought for permanent injunction restraining the Defendants from interfering with the Plaintiffs’ peaceful possession and enjoyment of the suit schedule property.
3. Pursuant to the notice issued by the Civil Court, the Defendants appeared before the Court and filed written statement. Since there was delay in filing the written statement, on an application being filed by the Defendants for condonation of delay, the learned Civil Judge condoned the delay and permitted the Defendants to file written statement with cost of Rs. 1,200/-. On 29-9-2007, the Learned Civil Judge directed the parties to appear before the Mediators on 6-12-2007 to find out the possibility of settling the matter through Mediators. On 6-12-2007, the Plaintiffs were present, however the Defendants 1 to 3 remained absent. On the same day, the Learned Civil Judge passed an order directing all the parties to be present before the Mediators on 3-1-2008, failing which, necessary orders will be passed. However, on 1-3-2008 also Defendants 1 to 3 remained absent before the Mediator. In view of that, the learned Civil Judge was pleased to struck-off the defence of the Defendants for non-appearance before the Mediators under Order X Rule 4(2) of Code of Civil Procedure.

4. The Learned Civil Judge in his order dated 6-12-2007 has observed that Section 89 read with Order X Rule 1 -A of Code of Civil Procedure are mandatory in nature, along with Rule 7 of Karnataka (Case Flow Management in Sub-ordinate Courts) Rules 2005 and therefore the cases have to be referred to the Mediator under the Alternative Dispute Resolutions and directed the Defendants to appear before the Mediator on 3.1.2008. Since the Defendants failed to appear before the Mediator, the Learned Civil Judge struck down the defence of the Defendants. Being aggrieved by the order dated 3-1-2008, the Defendants 1 to 3 have filed the present writ petition.

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5. Learned Counsel for the Petitioners submits that the order passed by the Learned Civil Judge striking down the defence of the Defendants is opposed to law and contrary to the Code of Civil Procedure. He also submits that the Court can struck off the defence only in exceptional circumstances. For non-appearance before the Mediator, the Learned Civil Judge ought not to have struck down the defence of the Defendants. He further contended that the Defendants have got very good case on merits, but in view of striking down the defence, the Defendants are unable to defend their case. The Learned Counsel for the Petitioners also contended that the order passed by the Learned Civil Judge is contrary to the Code of Civil Procedure and also Karnataka (Case Flow Management in Sub-ordinate Courts) Rules 2005 and before striking down the defence, no opportunity was given to the Defendants to have their say in the matter and sought for quashing the said order.

6. Per contra, the Learned Counsel appearing for the Respondents contended that there is no infirmity or irregularity in the order dated 3-1-2008 passed by the Learned Civil Judge. He further contended that with the consent of both the parties, the matter was referred to Mediators for mediation. Though sufficient opportunity was given to the Petitioners to appear before the Mediator, the Petitioners had failed to be present when the matter was taken up for mediation. He also contends that as per Section 89 read with Rule 10(A) of Code of Civil Procedure and Rule 13 of the Karnataka Code of Civil Procedure (Mediation) Rules 2005 the Petitioners are not entitled for any reliefs, hence, sought for dismissal of the writ petition.

7. I have carefully examined the arguments addressed by the Learned Counsel for both the parties and also perused the order passed by the Court below.

8. Section 89 of Code of Civil Procedure provides that where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement to refer the same for arbitration, conciliation, judicial settlement including settlement through Lok Adalat; or mediation. Order X Rule 1 -A provides that the Court can direct the parties to opt any one mode of alternative dispute resolution before referring the matter. After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in Sub-section (1) of Section 89 of Code of Civil Procedure. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties. Where a suit is referred under Rule 1A and the Presiding Officer of Conciliation Forum or Authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the Court on the date fixed by it. Further, Rule 7 of Karnataka (Case Flow Management in Sub-ordinate Courts) Rules 2005 contemplates that the Presiding Officer after filing written statement or objections if any, shall explore the possibility of Settlement, and if there exist elements of a Settlement, then he shall proceed under Section 89 of the Code for reference to the Alternate Dispute Resolution Forum in the manner prescribed in the Karnataka (Alternate Dispute Resolution) Rules 2005. Further, Sub-rule 3 of Rule 7 provides that when the dispute is referred for the mediation and the mediator submits the terms of settlement entered into between the parties, which is reduced into writing in accordance with the Karnataka Code of Civil Procedure (Mediation) Rules 2005, the Court shall pass a judgment in terms of settlement, if terms of the settlement are lawful. Sub-Rule 4 contemplates that when the case is not settled either by way of conciliation or by mediation or Lok Adalath or judicial settlement, and the matter is referred back to the Court, the Court shall proceed with the disposal of the case on merits, in accordance with law. Further, Rule 13 of Karnataka Code of Civil Procedure (Mediation) Rules 2005 contemplates that the parties shall present personally or may be represented by their Counsel or power of attorney holder at the meetings or sessions notified by the mediator. If a party fails to attend a session or a meeting notified by the mediator, other parties or the mediator can apply to the Court in which suit is filed, to issue appropriate directions to that party to attend before the mediator and if the Court finds that a party is absenting himself before the mediator without sufficient reason, the Court may take action against the said party by imposition of costs.

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9. In the instant case, though the Civil Court directed the parties to be present before the mediator on 6-12-2007, the Defendants remained absent. The Court issued directions to the Defendants to be present before the mediator on 3-1-2008 failing which, necessary orders will be passed. Even on that day, the Defendants were absent.

10. The reading of the above provision makes it very clear that neither Section 89 of Code of Civil Procedure nor Order 10 Rule 1-A nor the Karnataka (Case Flow Management in Sub-ordinate Courts) Rules 2005 nor the Karnataka Code of Civil Procedure (Mediation) Rules 2005 provide for striking of the defence for non-appearance of the parties before the Mediator. Only Sub-rule (2) of Rule 13 of the Karnataka Code of Civil Procedure (Mediation) Rules 2005 contemplates that the Court may impose cost for non-appearance of the parties before the Mediator. Hence, I am of the view that the order passed by the Learned Civil Judge striking off the defence of Defendants 1 to 3 is contrary to law and Rules referred above. If the parties fail to appear before the Mediator, the Court may impose some penalty fixing some other date to appear before the Mediator and accordingly the order passed by the Learned Civil Judge striking off the defence of the Defendants is liable to be set aside.

11. In the circumstances, the writ petition is allowed while setting aside the order of the Learned Civil Judge, dated: 3.1.2008 made in O.S. No. 1649/2006.

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