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2. Analysis of Section 89 and its Scheme 2.1 By the Code of Civil Procedure (Amendment) Act 1999, section 89 had been introduced in the Code of Civil Procedure, 1908 and it became effective from 01-07-2002. Section 89 of the CPC reads as under:

"89. Settlement of disputes outside the Court.- (1)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 and refer the same for -

6.2 The following shall be substituted in the place of existing section 89 of the Code of Civil Procedure, 1908:

"89: Settlement of disputes outside the court -

1) Where it appears to the court, having regard to the nature of the dispute involved in the suit or other proceeding that the dispute is fit to be settled by one of the non-

adjudicatory alternative dispute resolution processes, namely, conciliation, judicial- settlement, settlement through Lok Adalat or mediation the court shall, preferably before framing the issues, record its opinion and direct the parties to attempt the resolution of dispute through one of the said processes which the parties prefer or the court determines.

6.4.1 Section 16, Court-fees Act, 1870 There is one more provision regarding which the Commission would like to focus the attention of the Government. That is section 16 of the Court-fees Act, 1870, which was inserted by the same CPC Amendment Act by which section 89 was introduced. Section 16 which was thus added to the Court-fees Act reads thus:

"16. Refund of fee.-

Where the section refers the parties to the suit to any one of the mode of settlement of dispute referred to in section 89 of the Code of Civil Procedure, 1908, the plaintiff shall be entitled to a certificate from the court authorizing him to receive back from the collector, the full amount of the fee paid in respect of such plaint."

"Clause 35.- (Amendment to the Court-fees Act, 1870).

The proposed amendment is consequential to the new section 89 of the Code of Civil Procedure, 1908 proposed to be inserted vide clause 7 of the Bill so as to enable the party to claim refund of court-fee in case the matter in dispute is settled outside the section".

It clearly reflects the intention of the introducer of the Bill. However, the actual wording in the section is quite different. It does not appear that any conscious departure was intended at the time of enactment of the provision. It is clearly a case of draftsman employing the language which does not accord with the intention behind the clause in the Bill. It is, therefore necessary to amend the provision in the Court-fees Act, 1870 so as to bring it in conformity with section 21 of the LSA Act, keeping in view the intendment and rationale of the provision. It may be mentioned that the Court-fees Act of 1870 (Central enactment) does not have application in all States. Almost all the States have their own court-fee enactments. Section 16 is thus enforceable only in some Union Territories. However, some Judges, without being aware of this factual position, have been following section 16 of the Court-fees Act, though there is no similar provision in the State enactment. Be that as it may, section 16 of the Court-fees Act, 1870, wherever it is applicable, needs to be suitably amended.