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4. Drafting Errors in Section 89 - Afcons Infrastructure Case

4.1. Section 89 enacted with a lofty objective has revealed manifest drafting errors which in turn gave rise to complexities in understanding its true scope and purpose. The Supreme Court aptly observed in Afcons Infrastructure case that the correct interpretation and understanding of the provision has become "a trial judge's nightmare".

4.4 Secondly, the Supreme Court very rightly exposed the other obvious drafting error in mixing up the terms "judicial settlement" and "mediation". The Supreme Court pointed out that in order to give proper meaning to section 89, the said two words should be interchanged.

"Mediation" should find place in clause (c) of section 89 (2) and "judicial settlement" should be transferred to clause (d) in place of "mediation". Otherwise, as succinctly pointed out by the (2005) 6 SCC 344 apex Court, the anomaly would persist. This anomaly has been explained in the following words:

6.4.2 Here again, there is a clear drafting error which gives rise to conflict with section 21 of the Legal Services Authorities Act, 1987. The LSA Act provides that the court-fees paid in a case placed before the Lok Adalat shall be refunded in the manner provided under the Court-fees Act, 1870 only if a compromise or settlement has been arrived at between the parties. However, Section 16 of the Court-fees Act, as the language stands, goes further and says that the court-fee is refundable merely on a reference by court to any ADR process. This would mean that virtually the court-fee paid in most of the suits will have to be refunded. What will happen if the reference to conciliation, mediation or Lok Adalat does not end in a settlement and the parties come back to the court for adjudication? If the court-fees paid had already been refunded to the plaintiff when the reference was made, adjudication of the suit becomes free, there being no provision for collecting fresh court-fees. Obviously such a situation would not have been intended. This aspect was highlighted by Shri Justice R.V. Raveendran in his lecture at NJA Bhopal 4. The provision obligating the section to refund the entire court-fees paid on a mere reference is also liable to be abused by the plaintiff. In fact, the Chairman of the Commission heard such reports from the District Judges in some parts of the country. It was not intended by the Government (while introducing the Bill) or by the Legislature that the court-fees shall be refunded to the plaintiff once the reference is made to ADR process, irrespective of its outcome Supra Note 2 or the conduct of the plaintiff or petitioner. We may, in this context, refer to clause 35 of the 'Notes on Clauses' accompanying the CPC (Amendment) Bill, 1997. It reads as follows: