How to Obtain a Civil Remedy without Approaching District Courts

This Research Paper is written by Renu Jayant Kulkarni, a Third Year B.A LL.B (Hons.) Student at N.B.T Law College, Nashik.

ABSTRACT

This article aims to contribute to the field of law by spreading the information about civil remedies. This article introduces all civil remedies that are commonly used in the dispute settlement process. It throws light on the remedies and their impact on the judiciary. The information provided in above paragraphs suggest that the parties in conflict settle the disputes amongst themselves rather than taking the matter to courts and follow long, tedious legal processes. This article intends to inform the readers about the legal process of dispute resolution and different civil remedies related to dispute resolution.

INTRODUCTION

In India, the judiciary is crumbling under the tremendous pressure of a huge number of cases piling up. In this situation, increasing the number of courts, judges, jurisdiction changes and speeding up judicial appointments is not the only way to release the workload. To some extent, to decrease the number of cases which can be settled without judicial suit with the help of civil remedies is also an effective measure.

What is Civil Law?

Civil law is concerned with the rights and duties of an individual and provides a system which contains different civil remedies. The main object of civil law is to provide appropriate relief to the aggrieved person.

What are Civil Remedies?

The concept of remedy emerged from the principle “ubi jus ibi remedium ’’ meaning ‘where there is right, there is a remedy’. A civil remedy refers to the remedy that a party has to pay the victim of the wrong committed against him/her. The mere purpose is t[1]o restore the position of the injured party as it was in prior the wrong was committed against him/her. Civil remedies required the cooperation of the victim. Civil remedies are voluntary in nature. They can be used in the stage of pre-filing in which dispute arises, parties may negotiate and come to a common consensus to facilitate the process of settlement of the dispute.

DIFFERENT TYPES OF CIVIL REMEDIES

Alternative Dispute resolution (ADR, herein) is the most correct option for settlement of disputes. ADR is the way to settle the dispute without litigation. ADR allows parties to understand each other’s position and craft their own solution.

TYPES OF CIVIL REMEDIES

  • FACILITATION: – Facilitation is the most formal of the ADR procedures. A neutral third party works to facilitate both sides to reach a resolution for their dispute with mutual consent. This process indicates that the parties want to reach a settlement. In this process, negotiation is done by unbiased third parties via telephone contacts, written correspondence, e-mail, and etcetera. This process is sometimes also taken support of by the judges during taking the dispute to trial via t
  • MEDIATION

 Mediation is the procedure in which the outcome of the discussion is in the hand of the parties. An impartial mediator helps both the parties to try to reach a solution which is acceptable to both of them. The parties have the command over the topics of discussion and any agreement reached. In this session, firstly, both the parties explain their sides or views. The mediator listens and helps them to identify the issues in the dispute, o[2]ffers options for resolution and assists them in drawing and drafting a settlement. Mediation is used when the parties want to keep long-term, friendly relations. Therefore, when family members, neighbors or business partners have a dispute, mediation is the best way to settle the dispute and also for preservation of relations and emotions of both parties. Mediators help the parties to communicate in a non-threatening and effective manner.

  • ARBITRATION

Arbitration is the formal and most preferred method. It takes the decision-making away from the parties. The arbitrator hears the arguments and examines evidence from each side, then decides the decision of the dispute. Arbitration is less formal than a trial process and the rules of evidence are usually relaxed. Each party presents proofs and arguments at the hearing. There is no facilitative discussion between the parties at any condition. The award is often supported by a reasoned opinion. Arbitration can be ‘Binding’ or ‘Non-binding’. In binding arbitration, parties cannot request for trial because the arbitrator’s decision is final. In non- binding arbitration, parties may request for trial if they don’t accept the arbitrator’s decision. Arbitration is useful for cases when the parties want a third person to settle the dispute through cost-effective and speedy procedure.

  • NEUTRAL EVALUATION

Neutral evaluation is a procedure where each party presents their case to a neutral party/person, who gives an opinion on the strengths and weaknesses of each party’s evidence, arguments and suggests how the dispute should be settled. It is a very effective method where the dispute subject requires an expert for advice. The opinion of the evaluator is used for negotiation of a settlement. Neutral evaluation is best for cases with technical issues that need an expert and where there are no significant emotional or personal barriers in reaching a settlement.

  • SETTLEMENT CONFERENCES

In this type of dispute settlement, there is a minute touch of constitutional remedy. Herein, settlement conferences may be voluntary or mandatory depending upon the judge.  The parties present themselves before a judge or a referee to discuss possible settlement for their dispute. The judge will not make a decision but will assist the parties in evaluating the strong points and weak points of their case.

  • COMMUNITY DISPUTE RESOLUTION PROGRAM

Community dispute resolution programs   not much prevails in India. But, it is started in the form of Online Dispute Resolution (ODR). In Michigan, there are Community Dispute Resolution Centers CDRCs, herein) constituting trained Community Volunteers who provide low-cost mediation as an alternative to costly court procedures.  This kind of mediation procedure is tailored to handle a wide range of private and public conflicts such as landlord/te[3]nant disputes, business dissolutions, land use conflicts, public education violations or adult guardianships/ conservatorships conflicts. Mostly, such cases are referred by the courts to CDRCs.

DIFFERENT REMEDIES FOR DISPUTES ACCORDING TO:

Specific Relief Act ,1963:-

  1. Recovery of possession of property: – a person entitled to the possession of specific movable property may recover it in the manner provided by the code of civil procedure code, 1908.
  2. Specific performance of contracts: – In a case relating to specific enforcement of contract, the defendant can take all these defences which are available under any law relating to contract.
  3. Rescission of contract: – If one party failed to fulfill their obligations then another party can file the suit for rescission of contract.
  4. Rectification of Instruments: – The party or his representative may institute a suit to have the instrument rectified.
  5. Cancellation of instruments: – any person who has a reasonable apprehension that an instrument may cause him injury may sue to have it adjudged.
  6. Injunction:-It is a try to return an injured party to a position they were in before the harm occurred.
  7. Declaratory Decrees: – any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right.

Indian Contract Act, 1872:-

  1. Recession of contract: – when one of the parties to a contract does not fulfill his obligations, then the other party can rescind the contract and refuse the performance of his obligations.
  2. Sue for Damages: – if the promises are broken, then the suffering party can claim compensation for loss or damages.
  3. Sue for specific performance: – This means the party in breach will actually have to carry out his duties according to contract. It is granted instead of damages by the court.
  4. Injunction: – Injunction aims at rectifying, rather than [4]preventing the defendant’s misconduct.
  5. Quantum Meruit: – Quantum Meruit means to provide reasonable remuneration of services the party has provided.

PLATFORMS FOR OBTAINING CIVIL REMEDIES:-

  • CONSUMER FORUMS

Consumer forums are special courts for consumers. Consumer forums work as per Consumer Protection Act, 1986(CPA, 1986).  Any customer who falls under the purview of ‘consumer’ under CPA, 1986 can lodge his/her complaints in forums. It has a three tier quasi-judicial mechanism — at the [5]district, state and national levels, to provide simple and speedy resolution to consumer disputes.

  1. At the district level it is called District consumer redressal forum (District forum). It hears cases for claims up to 20 lakhs.
  2. At the state level it is known[6] as State consumer disputes redressal forum (State commission). It hears cases for claims of above 20 lakhs to 1 crore and appeals against orders of district forum.
  3. At the national level, it is called the National [7]consumer disputes redressal commission. It hears cases for claims for above 1crore and also hears appeals against state forum judgements.

 And fourth top most is the Supreme Court.

 4. The Supreme Court hears the appeal against the national forum.

These forums are the only courts where you do not need to advocate and can fight your case yourself until you have knowledge of your care and little bit of law.

  • LOK ADALAT

 The first Lok Adalat was held in Gujarat in 1982. Lok Adalat (people’s court) is one the ADR mechanisms in India. Lok Adalat can settle the cases pending on panchayat or the pre-litigation stage in a court of law. The decisions of Lok Adalat have statutory status under the Legal Services Authorities Act, 1987 (LSA, 1987)). Under LSA Act, the decision made by the lok adalat is deemed to be a case of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law. If the parties are not satisfied with the award of the lok adalat, they are free to initiate litigation by approaching the court of appropriate jurisdiction. In the Lok Adalat there is no provision for an appeal against the decision of Lok Adalat.  The main condition of the Lok Adalat is that the both parties in dispute should agree for settlement. Lok adalat settles money recovery suits very effectively and efficiently. Other law infringements related to partition, damages and matrimonial cases may. They can also take compoundable criminal cases.

  • Online Dispute Resolution mechanisms (ODR, herein)

Online Dispute Resolution is the mechanism for resolution of disputes, particularly small and medium – value cases, using digital technology and techniques of ADR such as negotiation, mediation and arbitration. ODR can help the judiciary to resolve disputes efficiently and affordably with the use of technology. It is a wide field, which may be applied to a range of disputes, from interpersonal disputes including consumer to consumer disputes or material separation, to court disputes and interstate conflicts. Niti aayog, in association with agami and omidyar network india, brought together key stakeholders in a meeting for advancing ODRs in India.

  • National Green Tribunal (NGT, herein)

The NGTl Act, 2010 is an Act of the parliament of India which enables the creation of special tribunals to handle the expeditious disposal of cases pertaining to environmental issues. It draws inspiration from India’s constitutional provision of Article 21 protection of life and personal liberty, which assures the citizens of India the right to a healthy environment.

Advantages of civil remedies:-  

Civil remedies are easier and quicker to implement because they require less staff and time to implement. Civil remedies can be more effective in preventing crime than criminal prosecution. Civil remedies include money saving [8]processes. Civil remedies are advised based due to that they can help in preventing domestic violence and hate crimes. Use of civil remedies can help in making good reviews about administration.

CONCLUSION

According to all the information, civil remedies are very beneficial for the judiciary and society. Institutions like Lok Adalat, online Dispute Re[9]solution, NGT are helping in decreasing the burden on the judiciary. Use of all these institutions can help in saving money and time.  All these remedies are present for services but to some extent these are unknown for common people. However, there is a need to guide people about civil remedies is important and making improvement in these processes is a duty of all citizens not only administration by cooperating with each other.

                             

[1] The Hindu Newspaper

Marc Newman , “Forms of Alternative Dispute Resolution”, The Miller law firm , (17 March,2020) , www.millerlawpc.com

[2] www.en.m.wikipedia.org

drishti ias , “Alternative Dispute Resolution (ADR) Mechanism”, Drishti The vision foundation, India,(26 November 2018),www.drishtiias.com

[3] Consumer Protection Act,1986, www.mcrhrdi.gov.in

[4] Specific Relief Act, 1963.

Indian Contract Act, 1872.

Legal Services Authorities Act, 1987.

[5] The National Green Tribunal Act, 2010…

[6]Shubhi_3014,” Remedies available under Specific Relief Act,1963″, Legal Bites- Law and Beyond, ( 2 August,2018), www.legalbites.in

[7]L

[8] Department of consumer affairs,”Consumer forum Network”, National informatics centre (NIC),(18 September 2018), www.consumeraffairs.nic.in

[9]  “Remedies for breach of contract”, www.topper.com