Arbitration in Civil Procedure code

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Alternative to litigation that allows parties to resolve their disputes in the presence of arbitrators (neutral parties).


There are many unsolved cases, clogged in Indian courts. Even though setup of fast track courts cases are still piling up.

Budget allocation for Indian judiciary is around 0.8 to 0.9% of the GDP. Also in reality court access to vast majority of the poor in India. Legal procedures involves a lot of money and paperwork as well as take up a lot of time

Alternative dispute resolution (ADR) refers to any method of resolving disputes without litigation.

In situations using negotiation, arbitration or mediation used.


Black Law dictionary: Alternate dispute resolution is a procedure for settling a dispute by means other than litigation, such as arbitration, mediation or mini trial.

US Legal says, Settling a dispute by impartial persons without proceeding to a court trial.

Arbitration in Mythology:

In Mythology Narada Muni finds in Arbitration, Mediating, Negotiating, not being in any side, outcome of goodness, justice and dharma as his goal

Krishna doing mediation, negotiation for Pandavas infront of Kauravas.

Moses and Jesus becoming mediator of God and God words. One gives the word of god through the slate, Jesus imparted the knowledge and way to reach the god.

King Solomon ordered to kill the child, original mother pleads to not to kill but the fake one accepting to kill the child. This is the first Arbitration recorded in Bible.

Arbitration in history

Arbitration is not a new experience for people of this country. It is prevailing in India from ancient years.

Ancient system of dispute resolution made a considerable contribution relating to a family, social groups and also minor disputes relating to trade and property.

At home elder of a house usually resolve the conflicts, to create the peace and harmony among the family members.

Village council usually elders of village through panchayat leading the role of resolving the disputes in very informal way.

Krishna imparting knowledge to Arjuna, were the knowledge of Dharma should be told for years, but in Warfield he told what is  right and which is wrong. Certain way to make the warrior to accomplish the duty.

In Mahabharata, if you don’t understand the rules just do your, Karma (duty) & Dharma (righteousness) is a kind of arbitration.

In Quran, Abu Musa Al-Ash’ri was guided by second caliph Umar bin Khattab, to resolving the disputes amicably, “The believers are a single brotherhood, so make peace and reconciliation between two brothers”, also says “If two parties fall into a quarrel, make ye peace between them, with justice and be fair”

Panchayat: In Hindu law there is a reference in “Brhadaranayaka Upanishad”, it mentions,

Puga – Local courts

Srenis – People engage with similar business

Kula – Members worried about a specific community

Cumulatively known as Panchayat.

Sali the impartial umpire holds the panchayat a mini court to resolve the small disputes during the Mughal period. Judges known as Kazee, used to follow Hedaya (guidance) to try and guide the two parties to resolve a matter.

Arbitration during the British Era

The Bengal resolution of 1793 – mentions the suit does not exceeds 200 Rs., primarily related to accounts, partnership, debts, non-performance of contractual obligations can be addressed through arbitration

Civil Procedure code 1859 – Chapter VI Section 312-327 refers the disputes to arbitration

Indian Arbitration Act, 1899 – was introduced as the first Indian legislation regarding the ADR, matters settled by agreement between parties did not require court supervision, left to purview of Schedule 2 of Code of Civil Procdeure, 1908

Arbitration Act, 1940 – Domestic arbitration and international ADR proceedings.

Conventions shaped ADR

1927 - Geneva Convention on the execution of Foreign Arbitral Awards

1958 – The New York Convention (Authorities and procedures of ADR)

1961 – Geneva convention (Jurisdictions)

1965 – Washington Convention (Disputes between states and nations)

 Frank E.A. Sander

Harvard Professor Frank E.A. Sander a special consultant to the ABA (American Bar Association) assisting the minor disputes at Columbia school. He found the alternative paths to justice. He co-author the book name Dispute Resolution. Through his books and articles he developed ADR, hence become father of ADR.

Due to the popular idea of de-centralization from central powers, Gandhi called as father of Indian ADR.

Arbitration in India

-        Bengal Regulation Act, 1772, 1780 & 1781 designed to support Arbitration

-        Procedures in Civil courts, codified arbitration act VIII of 1857

-        Indian Arbitration act 1899 passed.

-        1940 Arbitration act was enacted

-        1987 – Through Legal services authorities act, Lok Adalats received statutory status.

-        1996 – Arbitration and Conciliation act replacing 1940 arbitration act.

ADR in Civil procedure code

1859 – Code of Civil Procedure from section 312 to 325 dealt with arbitration in suits while 326 and 327 provided for arbitration without court intervention.

1976 – Code of Civil Procedure settlement of matters concerning the family.

1999 – Code of Civil Procedure 1999 obtained statutory recognition for ADR.

2002 – Code of Civil Procedure (Amendment Act) Act No. 22, bring a change in the procedure in suits and civil proceedings by way of reducing delays and compressing them into a years time from institution of suit till disposal and delivery of judgment.

Section 80 – Serving notice under section 80 is to give government sufficient warning of the case against government., if it so then issue can be settle the claim without litigation or afford restitution.

Section 80(1) – No suit against government or public officer unless a notice served.

Section 89 – Power to refer the dispute for settlement or conciliation without the intervention of court.

Case Laws

ONGC vs. Collector of Central Excise.

Dispute between public sector company against Government of India involving principles. Court held that, there should be mutual consent or arbitration or avoiding litigation to resolve the disputes.

Salem Advocate Bar association, Tamilnadu vs. Union of India

All endeavors made by court at the earliest point of time to settle the dispute under section 89 of the code. However the court cannot compel a party to surrender to ADR.


Section 89 is important part of Code of Civil procedure resolving disputes between parties. It reduces the burden of the court, ensures compromise and speedier effective method of administering justice.







6.      Alternative Dispute Resolution in Islam: An Analysis by Dr. Vandana Singh

7.      ADR Dharma by Aalok Sikand


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