The B

PUBL

(NO. PATNA 517) P

No. B/Estt.(H.C.)-06

High Court of Patna propos

122 of the Code of Civil Pr

September, 2008 in Bihar G

from the persons likely to be

taken into consideration on

Gazette.

AND WHEREAS, the

publication 05th September,

AND WHEREAS, no o

the High Court of Patna.

NOW, THEREFORE, i

read with Section 126 and

following rules made by the

published namely:-

Civil Procedure (Alt

REGISTE

Bihar Gaze

XTRA ORDIANARY

LISHED BY AUTHORIT

9TH KARTIK 1930 (S)

ATNA, FRIDAY, 31ST OCTOBER 2

LAW DEPARTMENT

————

NOTIFICATION

24th October 2008

6-03/2008/5252/J Whereas the draft of the follow

sed to make was published as required by sub-se

rocedure, 1908 (Act 5 of 1908) in Notification N

Gazette dated 05th September, 2008 inviting objec

e affected thereby and notice was given that the sa

or after fifteen days from the date of its public

e said copy of the Gazette Notification was m

2008.

objections or suggestions have been received to th

in exercise of the powers conferred by Section

d 127 of the Code of Civil Procedure, 1908 (

e High Court, Patna and approved by the State G

ternative Dispute Resolution) (Bihar) Rules, 2008

By order of the G

RAJENDRA KU

Sec-cum-legal R

ERED NO. PT.-40

ette

2008

wing rules which the

ection (1) of Section

No. 4236 dated 05th

ctions or suggestions

aid draft rules will be

cation in the Official

made available to the

he said draft rules by

89 and Section 122

(Act 5 of 1908) the

Government is hereby

Governor of Bihar,

UMAR MISHRA,

Remembrancer.

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

Civil Procedure (Alternative Dispute Resolution) (Bihar) Rules, 2008

1. Title and Commencement:-

(i) These rules may be called Civil Procedure (Alternative Dispute

Resolution) (Bihar) Rules, 2008.

(ii) They shall come into force from the date of their publication in the Official

Gazette.

2. Procedure for directing parties to opt for alternative mode of settlement:-

(a) The Court shall, after recording-admissions and denials at the first

hearing of the suit under rule 1 of Order X, and where it appears to the

Court that there exists elements of settlement which may be acceptable

to the parties, formulate the terms of settlement and give them to the

parties for their observations under sub-section (1) of Section 89, and

parties shall submit to the Court their responses within thirty days of the

first hearing.

(b) At the next hearing, which shall be not later than thirty days of the

receipt of responses, the Court may reformulate the terms of a possible

settlement and shall direct the parties to opt for one of the modes of

settlement of disputes outside the Court as specified in clauses (a) to

(d) of sub-section (1) of Section 89 read with Rule 1A of Order X in the

manner stated hereunder.

"Provided that the Court, in the exercise of such power, shall not refer any

dispute to arbitration or to judicial settlement by a person or institution without the written

consent of all the parties to the suit".

3. Persons authorized to take decision for the Union of India, State

Government and others:-

(i) For purpose of Rule 2, the Union of India or the Government of a State

or a Union Territory, all local authorities, all Public Sector Undertakings,

all statutory corporations and all public authorities shall nominate a

person or persons or group of persons who are authorized to take a

final decision as to the mode of Alternative Dispute Resolution in which

it proposes to opt in the event of direction by the Court under Section 89

and such nomination shall be communicated to the High Court within

the period of three months from the date of commencement of these

Rules and the High Court shall notify all the Subordinate Courts in this

behalf as soon as such nomination is received from such Government

or authorities.

(ii) Where such person or persons or group of persons have not been

nominated as aforesaid, such party as referred to in clause(1) shall, if it

is a plaintiff, file along with plaint or if it is a defendant file, file along with

or before filling of the written statement, a memo into the Court,

nominating a person or persons or group of persons who is or are

authorised to take a final decision as to the mode of Alternative Dispute

Resolution which the party prefers to adopt in the event of the Court

directing the party to opt for one or other mode of Alternative Dispute

Resolution.

4. Court to give Guidelines to parties while giving direction to opt:-

1. Before directing the parties to exercise option under clause (b) of Rule 2, the

Court shall give such guidance as it deems fit to the parties, by drawing their attention to

the relevant factors which parties will have to take into account before they exercise their

option as to the particular mode of settlement, namely:

(i) That it will be to the advantage of the parties, so far as time and expense

are concerned, to opt for one or the other of these modes of settlement

referred to in section 89 rather than seek a trial on the disputes arising in

the suit.

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

(ii) That, where there is no relationship between the parties which requires to

be preserved, it may be in the interest of the parties to seek reference of

the matter of arbitration as envisaged in clause (a) of sub-section (1) of

section 89.

(iii) That where there is a relationship between the parties which requires to be

preserved, it may be in the interest of parties to seek reference of the

matter to conciliation or mediation, as envisaged in clause (b) or (d) of

sub section (1) of Section 89.

Explanation: Dispute arising in matrimonial, maintenance and child custody matters

shall, among others, be treated as cases where a relationship between

the parties has to be preserved.

(iv) That, where parties are interested in a final settlement wich may lead to a

compromise, it will be in the interests of the parties to seek reference of

the matter to Lok Adalat or to judicial settlement as envisaged in clause

(v) The difference between the different modes of settlement namely,

arbitration, conciliation mediation and judicial settlement as explained

below:-

Settlement by "Arbitration" means the process by which an arbitrator

appointed by parties or by the Court, as the case may be, adjudicates the disputes

between the parties to the suit and passes an award by the application of the provisions

of the Arbitration and Conciliation Act, 1996 (26 of 1996), in so far as they refer to

arbitration.

Settlement by "Conciliation" means the process by which a conciliator who is

appointed by parties or by the Court, as the case may be, conciliates the disputes

between the parties to the suit by the Application of the provisions of the Arbitration and

Conciliation Act, 1996 (26 of 1996) in so far as they relate to conciliation, and in

particular, in exercise of his power under sections 67 and 73 of that Act, by making

proposals for settlement of the dispute and by formulating or reformulating the terms of a

possible settlement and has a greater role than a mediator.

Settlement by "Mediation" Means the Process by which a mediator appointed

by parties or by the Court, as the case may be, mediates the disputes between the

parties to the suit by the application of the provisions of the Mediation Rules, 2003 in

Part II, and in particular, by facilitating discussion between the parties directly or by

communicating with each other through the mediator, by assisting parties in identifying

issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise,

generating options in an attempt to solve the dispute and emphasizing that it is the

parties own responsibility for making decisions which affect them.

Settlement in "Lok Adalat" means settlement by Lok Adalat as contemplated

by the Legal Services Authority Act, 1987.

"Judicial Settlement" means a final settlement by way of compromise entered

into before a suitable institution or person to which the court has referred the dispute and

which institution or persons are deemed to be the Lok Adalats under the provisions of

the Legal Services Authority Act, 1987 (39 of 1987) and where after such reference, the

provisions of the said Act, apply as if the dispute was referred to a Lok Adalat under the

provisions of that Act.

5. Procedure for reference by the Court to the different modes of

settlements:-

(i)

Where all parties to the suit decide to exercise their option and to agree

for settlement by arbitration, they shall apply to the Court, within thirty

days of the direction of the Court under clause (b) of Rule 2 and the Court

shall, within thirty days of the said application, refer the matter to

arbitration and thereafter the provisions of the Arbitrations and

Conciliation Act, 1996 (26 of 1996) which are applicable after the stage of

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BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

making of the reference to arbitration under that Act, shall apply as if the

proceedings were referred for settlement by way of arbitration under the

provisions of that Act.

(ii)

Where all the parties to the suit decide to exercise their option and to

agree for settlement by the Lok Adalat of where one of the parties applies

for reference to Lok Adalat the procedure envisaged under the Legal

Services Act, 1987 and in particular by section 20 of that Act, shall apply.

(iii)

Where all the parties to the suit decide to exercise their option and to

agree for judicial settlement, they shall apply to the Court within thirty

days of the direction under clause (b) of rule 2 and then the court shall,

within thirty days of the application, refer the matter to a suitable

institution or person and such institution or person shall be deemed to be

a Lok Adalat and thereafter the provisions of the Legal Services Authority

Act, 1987 (39 of 1987) which are applicable after the stage of making of

the reference to Lok Adalat under that Act shall apply as if the

proceedings were referred for settlement under the provisions of that Act.

(iv)

Where none of the parties are willing to agree to opt or agree to refer the

dispute to arbitration, or Lok Adalat, or to judicial settlement, within thirty

days of the direction of the Court under clause (b) of rule 2, they shall

consider if they could agree for reference to conciliation or mediation,

within the same period.

(v)(a) Where all the parties opt and agree for conciliation, they shall apply to the

Court, within thirty days of the direction under clause (b) of rule 2 and the

Court shall, within thirty days of the application refer the matter to

conciliation and thereafter the provisions of the Arbitration and

Conciliation Act, 1996 (26 of 1996) which are applicable after the stage of

making of the reference to conciliation under that Act, shall apply, as if the

proceedings were referred for settlement by way of conciliation under the

provisions of that Act.

(b) Where all the parties opt and agree for mediation, they shall apply to the

Court, within thirty days of the direction under clause (b) of Rule 2 and the

Court shall, within thirty days of the application, refer the matter to

mediation and then the Bihar Civil Procedure (Mediation) Rule, 2008 in

part II shall apply.

(vi)

where under clause (d) all the parties are not able to opt and agree for

conciliation or mediation, one or more parties may apply to the Court

within thirty days of the direction under clause (b) of rule 2, seeking

settlement through conciliation or mediation, as the case may be, and in

that event, the Court shall within a further period of thirty days issue

notice to the other parties to respond to the application, and

(a) in case all the parties agree for conciliation, the court shall refer the

matter to conciliation and thereafter, the provision of the Arbitration

and Conciliation Act, 1996 which are applicable after the stage of

making of the reference to conciliation under that Act, shall apply.

(b) in case all the parties agree for mediation, the court shall refer the

matter to mediation in accordance with the Bihar Civil Procedure

(Mediation) Rules, 2008 in part II shall apply.

there exists elements of a settlement which may be acceptable to

the parties and that there is a relationship between the parties which

has to be preserved, the Court shall refer the matter to conciliation

or mediation, as the case may be, in case the dispute is referred to

Conciliation, the provisions of Arbitration and conciliation Act, 1996

which are applicable after the stage of making of the reference to

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

Conciliation under that Act shall and in case the dispute is referred

to mediation, the provisions of the Bihar Civil Procedure (Mediation)

Rules, 2008 shall apply.

(vii) (a) where none of the parties apply for reference either to arbitration, or Lok

Adalat, or judicial settlement or for conciliation or mediation, within thirty

days of the direction under clause (b) of rule 2, the Court shall, within a

further period of thirty days, issue notices to the parties or their

representatives fixing the matter for hearing on the question of making a

reference either to conciliation or mediation.

(b) After hearing the parties of their representatives on the day so fixed

the Court shall, if there exists elements of a settlement which may be

acceptable to the parties is relationship between the parties which

has to be preserved, refer the matter to conciliation or mediation. In

case the dispute is referred to conciliation, the provisions of the

Arbitration and Conciliation Act, 1996 which are applicable after the

stage of the making of the reference to Conciliation under that Act

shall and in case the dispute is referred to mediation, the provisions

of the Bihar Civil Procedure (Mediation) rules, 2008, shall apply.

(viii) (a) No next friend or guardian for the suit shall, without the leave of the

Court, expressly recorded in the proceedings of the Court, opt for any one

of the modes of alternative Dispute Resolution nor shall enter into any

settlement on behalf of a minor or person under disability with reference

to the suit in which he acts as mere friend or guardian.

(b) Where an application is made to the Court for leave to enter into a

settlement initiated into in the Alternative Dispute Resolution

Proceedings on behalf of a minor or other persons under disability

and such minor or other person under disability is represented by

Counsel or Pleader, the Counsel or Pleader shall file a certificate

along with the said application to the effect that the settlement is, in

his opinion, for the benefit of the minor or other person under

disability. The decree of the Court-based on the settlement to

which the minor or other person under disability is a party, shall

refer to the sanction of the Court thereto and shall set out the terms

of the settlement.

6. Referral to the Court and appearance before the court upon failure of

attempts to settle disputes by conciliation or judicial settlement or mediation:-

(i) Where a suit has been referred for settlement for conciliation,

mediation or judicial settlement and has not been settled or where it is

felt that it would not be proper in the interests of justice to proceed

further with the matter, the suit shall be referred back again to the

Court with a direction to the parties to appear before the Court on a

specific date.

(ii) Upon reference of the matter back to the Court under sub-rule (1) or

under sub-section (5) of section 20 of the Legal Services Authority

Act, 1987, the Court shall proceed with the suit in accordance with

law.

7. Training in alternative methods of resolution of disputes, and

preparation of manual:-

(i) The High Court shall take steps to have training courses conducted in

places where the High Court and District Courts or Courts or Courts of

equal status are located, by requesting the bodies recognized by the

High Court or Universities imparting legal education or retired Faculty

Members or other person who, according to the High Court are well

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BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

versed in the techniques of alternative methods of resolution of dispute,

to conduct training courses for lawyers and Judicial Officers.

(ii)(a) The High Court shall nominate a Committee of Judges, faculty members

including retired persons belonging to the above categories senior

members of the Bar, other members of Bar specially qualified in the

techniques of Alternative Dispute Resolution, for the Purpose referred to

in clause (i) and for the purpose of preparing a detailed manual of

procedure for Alternative Dispute Resolution to be used by the Court in

the State as well as by the arbitrators or authority or person in case of

judicial settlement or conciliators or mediators.

(b) The said manual shall described the various methods of alternative

dispute resolution, the manner in which any one of the said method

is to be opted for, the suitability of any particular method for any

particular type of dispute and shall specifically deal with the role of

above persons in disputes which are commercial or domestic in

nature or which relate to matrimonial, maintenance and child

custody matters.

(iii) The High Court and the District Courts shall periodically conduct

seminars and workshops on the subject of Alternative Dispute

Resolution procedure throughout the State or States over which the High

Court has jurisdiction with a view to bring awareness of such procedures

and to impart training to lawyers and Judicial Officers.

(iv) Persons, who have experience in the matter of Alternative Dispute

Resolution Procedures and in particular in regard to conciliation and

mediation, shall be given preference in the matter of empanelment of

purposes conciliation or mediation.

8. Applicability of this rules to other proceedings:-The Provisions of these

Rules may be applied to proceeding before the Courts, including Family Courts

constituted under Family Courts Act (66 of 1984), while dealing with matrimonial,

maintenance, and child custody disputes, wherever necessary, in addition to the rules

framed under the Family Courts Act (66 of 1984).

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PUBLISHED AND PRINTED BY THE SUPERINTENDENT,

BIHAR SECRETARIAT PRESS, PATNA.

Bihar Gazette (Extra)517—571+400—D.T.P.