From Dockets to Dialogue: The Judiciary’s Transformative Role in Advancing ADR under CPC
Keywords: Alternative Dispute Resolution (ADR), judicial settlement, Section 89 CPC, Order XXIII CPC, Procedural Fairness
1) Introduction
The Code of Civil Procedure or CPC 1908 is the backbone of India’s civil justice system. It performs a dual function – firstly, promoting Alternative dispute resolution to reduce the burden of the courts, and secondly, preserving procedural mechanisms to ensure fair justice within the court system. This article tries to critically examine Section 89 and Order XXIII of CPC, along with examining procedural steps to ensure fair trials as well as mechanisms to ensure finality of orders.
2) From Adversarial to collaboration: Adr under the civil procedure code
Currently, the courts are overburdened with the rise in new cases filed every year, whereas the disposal of cases is taking place at a very slow rate. The government took various steps in this regard. Still, the most effective among them was the introduction of section 89 of CPC, as it mandated the courts to settle conflicts through Alternative Dispute Resolution.[1]
2.1 Section 89: Legislative Framework for Alternative Dispute Resolution
The major objective lies in the facilitation of speedy and cost-effective dispute resolution, in consonance with constitutional and policy imperatives of reducing the escalating backlog of cases before the courts.[2]
Outlined below are the principal modes of Alternative Dispute Resolution to which courts may refer parties for settlement –
- Arbitration – It is a formal dispute resolution process in which a neutral third party, appointed by the parties on mutual agreement or by court intervention, delivers a binding award.
- Mediation – This involves a voluntary and confidential process wherein a neutral third party facilitates dialogue and negotiation between the disputants, intending to enable them to arrive at a mutually acceptable settlement.
- Conciliation – In this framework, a neutral 3rd party helps the disputing parties to reach an amicable and acceptable settlement without resorting to formal litigation. It may offer a non-binding settlement offer.
- Judicial Settlement – During this procedure, the judge facilitates negotiations between the parties and guides them towards a mutually amicable resolution, without issuing any formal judgment.
2.2 Interpreting Section 89: The Judicial Approach
The Supreme Court in the case of Afcons Infrastructure Ltd V. Cherian Varkey Construction Co. Ltd.[3] stated that section 89 must be read with flexibility to promote ADR and avoid procedural Impediments, and the same was further substantiated in the case of Salem Advocate Bar Association V. Union of India,[4] where the court emphasised that the ADR mechanism must be actively pursued by judges.
2.3 Settlement and Withdrawal of Suits under Order XXIII CPC: Doctrinal and Judicial Dimensions
The major objective behind filing a suit is to seek a remedy from the court, but in cases where the plaintiff no longer wishes to pursue his case further, then for such circumstances, CPC provides Order XXIII, which deals with settlement and Withdrawal of Suits.[5]
Rule 1 of Order XXIII gives the option to the plaintiff to withdraw a suit, with the possibility of instituting a fresh one, given a valid and reasonable cause is shown. Sub-rule (1) permits withdrawal at any stage without the court’s leave, but in such cases, the plaintiff forfeits the right to refile. Conversely, under Sub-rule (2), a fresh suit may be instituted only with the court’s permission, which is granted when the withdrawal is necessitated by formal defects or other justifiable grounds. This framework has a dual benefit; on one hand, it protects individuals from frivolous claims and on the other hand, it prevents plaintiffs from suffering undue prejudice due to procedural deficiencies.
According to Order XXIII Rule 3 of CPC,[6] parties are allowed to enter into a compromise, and the court will have to incorporate that settlement into a decree holding agreed terms.
The same interpretation was endorsed in the case of Banwari Lal v. Chando Devi,[7] This clarified the binding effect of decrees passed pursuant to a lawful compromise under Order XXIII Rule 3.
3) The Architecture Of Procedural Safeguards for Fair Trial Under CPC
The CPC had several provisions that provide procedural safeguards for the parties and ensure fair and impartial adjudications, also ensuring the principle of fairness in litigation. Protecting rights to a free trial[8] also ensures the protection of an individual’s fundamental rights. Furthermore, CPC also incorporates safeguards through Latin maxims such as ‘Audi Altrem Partem’ (the right to be heard) and ‘Nemo Judex in Causa Sua’ (the rule against bias).
3.1 Ensuring the Right to Be Heard: A Study of Order V and Order IX of CPC
Order V of CPC[9] makes it mandatory to provide proper services of summons, ensuring the defendant is informed and can contest the suit. In the case of Sangram Singh v. Election Tribunal,[10] It was held by the Supreme Court that CPC always aims to ensure a fair hearing and prevent an ex parte decree in the absence of due service.
3.2 Ensuring Procedural Justice: Evidence and Cross-Examination under Order XVIII CPC and the Evidence Act
Order XVIII governs the examination of witnesses and reinforces procedural fairness.[11] Furthermore, it also governs the recording of evidence in civil proceedings, prescribing procedures for presenting testimony, the duties of judges, and the evidentiary rights of parties.[12]
It was held in the case of K.L. Tripathi v. State Bank of India.[13]
3.3 Ensuring Impartiality in Adjudication and the Role of the Indian Judiciary
Rule 7 order IX of CPC[14] addresses a situation where a defendant, absent in an earlier hearing that proceeded ex parte, later appears and shows a valid reason for the absence. In such circumstances, the court may allow the defendant to be heard and continue the suit as if he had been present from the very beginning. It prevents undue hardship to the party who missed a hearing for genuine reasons and reflects a principle of fairness in civil procedure. Furthermore, Rule 5 of Order XLVII provides for the option of reviewing a judgment, which enables correction in cases of procedural or substantive error.
4) Principle of Finality of Judgement: A Cornerstone of CPC
The finality of judgment brings an end to the judicial process by prohibiting further appeals, new proceedings, and disputing clear facts. It is popularly known as the Doctrine of Res Judicata in Indian parlance. This doctrine is based on three Roman Maxims: ‘Nemo debet lis vaxari pro eaderm causa’ (no man should be vexed twice for the same cause), Interest ‘republicae ut sit finis litium’ (it is in the interest of the state that there should be an end to the litigation), and ‘Re judicata pro veritate occipitur’ (a judicial decision must be accepted as correct).
4.1 Constructive Res Judicata: A safeguard against abuse of power
This doctrine is an extension of the principle of Res Judicata. It applies to the matters that could have been raised in earlier proceedings but were not. It also prevents a party from bringing a second suit on the issues emerging from the same set of facts.[15] This doctrine was upheld in the case of Workmen v. Board of Trustees, Cochin Port Trust.[16] It also strengthens Judicial efficiency and ensures conclusive dispute resolution.
4.2 Doctrinal Boundaries of Review and Appeals: A CPC Perspective
Although the term ‘Appeal’[17] is not defined under CPC Section 96-100 of CPC lays down a structured system of appeal, allowing higher courts to rectify the errors.
The outpouring appeals are, however, problematic because we encounter judicial delays as a result, and what we get to learn through the precedents of the Supreme Court is that an appellate tribunal can only be permitted in a case where there are substantial errors.
Likewise, under Section 114, the reconsideration is allowed only when it is done under strict circumstances, thus eliminating the possibility of baseless reconsideration. Such a measured balance between judicial control and decision conclusiveness strengthens the level of trust in the fairness and consistency of judicial results by the populace.
Similarly, Section 114 does not permit the frivolous reconsideration since it permits review under marginally defined conditions. The issue of judicial supervision versus finality of judgments was what contributed towards the public confidence in the fairness and reliability of the judicial outcomes.
5) Conclusion
The Civil Procedure Code of 1908 (CPC) manages to establish a balance between adhering to a rigorous procedure to conduct a full adjudication process and establishing a fast dispute resolution mechanism with the help of ADR tools. Although procedural protection promotes justice and fairness, Section 89 and Order XXIII promote settlement. The mechanisms of promoting the concept of finality and minimising unnecessary and redundant litigation include res judicata and the limited power of appeal.
Moreover, CPC is not only able to alleviate the significant burden on the court but also to uphold the fundamental principles of natural justice and fairness through its efficient settlement process. With India still developing its legal landscape, it will be necessary to improve the ADR opportunities in the CPC, as well as the maintenance of due process. A balanced method to simplify the justice dispensation process, ensure the stability of the law, and minimise delays to ensure that the CPC can execute its two-fold mandate efficiently.
References;
[1] Yashika Kapoor, ‘Alternative Dispute Resolution under Civil Litigation’ iPleaders (Blog, 28 June 2020) https://blog.ipleaders.in/alternative-dispute-resolution-under-civil-litigation/, accessed 7 January 2026
[2] Rakesh Kumar Chaudhary, ‘Arbitration and ADR mechanisms under the scope of Section 89 of the Code of Civil Procedure, 1908’ (2023) 3 International Journal of Law, Justice and Jurisprudence 4 https://www.lawjournal.info/article/61/3-1-5-862.pdf, accessed 7 January 2026.
[3] Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24
[4] Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344
[5] Aishwarya Agrawal, ‘Withdrawal of Suit by Plaintiff under CPC’ LawBhoomi (Blog, 2 October 2024) https://lawbhoomi.com/withdrawal-of-suit-by-plaintiff-under-cpc/, accessed 7 January 2026
[6] Rajesh Singh, ‘Withdrawal and Adjustment of Suits: Order XXIII CPC’ LawFoyer (Blog, 21 January 2025) https://lawfoyer.in/withdrawal-and-adjustment-of-suits-order-xxiii-cpc/, accessed 7 January 2026
[7] Banwari Lal v. Chando Devi, (1993) 1 SCC 581
[8] Fair Trials — The Right to a Fair Trial
Fair Trials, ‘The Right to a Fair Trial’ Fair Trials (online) https://www.fairtrials.org/the-right-to-a-fair-trial/, accessed 7 January 2026.
[9] LawRato — CPC Order 5 (Issue and Service of Summons)
LawRato, ‘Order 5 CPC – Issue and Service of Summons’ LawRato (Indian Kanoon: CPC) (online) https://lawrato.com/indian-kanoon/cpc/order-5, accessed 7 January 2026.
[10] Sangram Singh v. Election Tribunal, (1955) 1 SCC 323
[11] WritingLaw — Order 18 Rule 4 CPC
WritingLaw, ‘Order 18, Rule 4 CPC’ WritingLaw (online) https://www.writinglaw.com/order-18-rule-4-cpc/, accessed 7 January 2026. (writinglaw.com)
[12] DrishtiJudiciary — Order XVIII of the Civil Procedure Code, 1908
DrishtiJudiciary, ‘Order XVIII of the Civil Procedure Code, 1908’ DrishtiJudiciary (online, 6 May 2025) https://www.drishtijudiciary.com/to-the-point/ttp-code-of-civil-procedure/order-xviii-of-the-civil-procedure-code-1908, accessed 7 January 2026.
[13] K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43
[14] LiveLaw News Network, ‘Order 9 Rule 7 CPC | Application for Setting Aside Ex-Parte Order Can Be Entertained Only If Filed Before Conclusion of Arguments: Himachal Pradesh HC’ LiveLaw (online, 15 September 2022) https://www.livelaw.in/news-updates/hp-high-court-order-9-rule-7-cpc-ex-parte-order-setting-aside-application-209336, accessed 7 January 2026.
[15] LawWeb, ‘Res Judicata vs Constructive Res Judicata: Key Differences’ LawWeb (online, 14 June 2025) https://www.lawweb.in/2025/06/res-judicata-vs-constructive-res.html, accessed 7 January 2026
[16] Workmen v. Board of Trustees, Cochin Port Trust, (1978) 3 SCC 119
[17] Rashmi Acharya, ‘The Concept and Process of Appeal in the Code of Civil Procedure (CPC)’ Legal-Wires (Lex-O-Pedia) (online, 7 March 2025) https://legal-wires.com/lex-o-pedia/the-concept-and-process-of-appeal-in-the-code-of-civil-procedure-cpc/, accessed 7 January 2026
