Assignment oN

Presented by:
Name: Md. Sharia Islam

Department: Feaculty of Law LLB (Hons) Eastern University

ID: 161100096

Section : 1

Subject : The code of civil procedure (II)

Course code: Law 405

Submitted by:
Md: Ifran Hossain

( Department of law Eastern University )

Date: 28/1/21
Tutorial question 1( a)

The Object of filing interpleader suit:

The suit is filed when the object is to be claimed by the defendants. The claim of
the suit gets adjudicated. The suit is filed when any person in any condition cause
death and has left some of the property without transferring to other members of
the family then that other family member has to claim the property or money from
the bank and then the bank has to become claimant to file a suit in the court to
decide whomever the property has to be transferred. This type of suit filed in the
Res Judicata court.Interpleader suit in C.P.C is defined in section 88 with order
no XXXV. An interpleader suit means if any person claims any property of her
husband or her parents and in case the owner of the property is dead without
transferring the property, then the second owner has to claim the property from the
bank or authority. After claiming for such property the bank or the authority has to
file an interpleader suit in the court. Then the court will decide who will be the main
owner of the property. In an interpleader suit, there were many defendants to claim
the property. Plaintiff gets the monetary value for filing the suit in the court on
behalf of the defendant. He is not liable for any damage.    

The Object of filing interpleader suit:

The suit is filed when the object is to be claimed by the defendants. The claim of
the suit gets adjudicated. The suit is filed when any person in any condition cause
death and has left some of the property without transferring to other members of
the family then that other family member has to claim the property or money from
the bank and then the bank has to become claimant to file a suit in the court to
decide whomever the property has to be transferred. This type of suit filed in the
Res Judicata court.

Conditions of Interpleader suit:

1. Debt, money, property either movable or immovable in the dispute.

2. Two defendants are there in the suit.
 3. Both defendants can claim each other for the property or money.
4. The person who has to pay the debt to the defendant is not valid for any
interest. 
5. The Claimant is willing to pay the debt, or some amount of money, or
property to the defendant. 
6. Suits are not pending in this.
7. This suit cannot be filed twice if the judgment is given in Res judicata. 

 How to file an interpleader suit:

a) The suit can only be filed by the plaintiff and the plaintiff can be a bank
in any subject-matter of interpleader suit. No landlord can sue to his
tenant or no family member can sue the defendant.

b) All the things are kept in the custody of the court

c) There were many defendants in the interpleader suit

d) An Interpleader suit is filed in the subject-matter of debt, money,

property, movable or immovable property. 

e) The plaintiff from whom the property is claimed, must not claim other
charges or cost who is ready to pay or deliver it to the rightful claimant.

(b) 

Zaman deposits a box of valuable jewels with syed as his agent .he then writes to
Nafiz for the purpose of making the jewels a security from himself to Nafiz for a
debt worth of tk 15000.After the passing of the stipulated time limit to dust off the
debt Zaman alleges that Nafizs debt is satisfied and Nafiz alleges the contrary both
claim the jewels from syed under the given below

Section 88 Where two or more persons claim adversely to one another the same debt, sum of
money or other property, movable or immovable, from another person, who claims no interest
therein other than for charges or costs and who is ready to pay or deliver it to the rightful
claimant, such other person may institute a suit of interpleader against all the claimants for the
purpose of obtaining a decision as to the person to whom the payment or delivery shall be made
and of obtaining indemnity for himself
 
 
Provided that where any suit is pending in which the rights of all parties can properly be
decided, no such suit of interpleader shall be instituted rule 1,2,4 and order 35 of laid down
following condition which shall be satisfied by the plaintiff who seeks to file an interpleader suit

1.The plaintiff shall state that he has no interest in the subject matter in dispute other than the
charges or costs
2.The claim made by the defendants severally and
3.There is no collusion between the plaintiff and any of the defendants

Ans.to.the.q.no-2

The Code of Civil Procedure (Amendment) Act, 1999 inserted  Section 89  providing for settlement of
disputes outside the Court and additionally inserted Rule 1 of Order X to the Code. Section 89 confers
the jurisdiction on the court to refer a dispute to an ADR method, whereas Rules 1 A to 1 C of Order X
lay down the way in which the jurisdiction is to be exercised by the court. The court explains the
alternatives concerning ADR method to the parties, permits them to take a method by consensus, and
if there's no consensus, proceeds to choose the method

Alternative dispute resolution (ADR) or external dispute resolution  typically denotes a wide

range of dispute resolution processes and techniques that act as a means for disagreeing parties
to come to an agreement short of litigation: a collective term for the ways that parties can settle
disputes, with the help of a third party. However, ADR is also increasingly being adopted as a
tool to help settle disputes alongside the court system itself.
Despite historic resistance to ADR by many popular parties and their advocates, ADR has
gained widespread acceptance among both the general public and the legal profession in recent
years. In fact some courts now require some parties to resort to ADR of some type
usually mediation, before permitting the parties' cass to be tried (indeed the European Mediation
Directive (2008) expressly contemplates so-called compulsory mediation; this means that
attendance is compulsory not that settlement must be reached through mediation) Additionally, parties
to merger and acquisition transactions are increasingly turning to ADR to resolve post-acquisition
disputes.
The rising popularity of ADR can be explained by the increasing caseload of traditional courts
the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and
the desire of some parties to have greater control over the selection of the individual or
individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of
which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle
disputes.  Since the 1990s many American courts have also increasingly advocated for the use
of ADR to settle disputes. However, it is not clear as to whether litigants can properly identify
and then use the ADR programmes available to them, thereby potentially limiting their
effectiveness.
ADR traditions vary somewhat by country and culture. There are significant common elements
which justify a main topic, and each country or region's difference should be delegated to sub-
pages.
ADR is of two historic types. First, methods for resolving disputes outside of the official judicial
mechanisms.Second, informal methods attached to or pendant to official judicial mechanisms.
There are in addition free-standing and or independent methods, such as mediation programs
and ombuds offices within organizations. The methods are similar, whether or not they are
pendant, and generally use similar tool or skill sets, which are basically sub-sets of the skills of
negotiation.
ADR includes informal tribunals, informal mediative processes, formal tribunals and formal
mediative processes. The classic formal tribunal forms of ADR are arbitration (both binding and
advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury
trials). The classic formal mediative process is referral for mediation before a court-appointed
mediator or mediation panel. Structured transformative mediation as used by the Service is a
formal process. Classic informal methods include social processes, referrals to non-formal
authorities (such as a respected member of a trade or social group) and intercession. The major
differences between formal and informal processes are (a) pendency to a court procedure and
(b) the possession or lack of a formal structure for the application of the procedure.
For example, freeform negotiation is merely the use of the tools without any process.
Negotiation within a labor arbitration setting is the use of the tools within a highly formalized and
controlled setting.
"Alternative" dispute resolution is usually considered to be alternative to litigation. For example,
corporate dispute resolution can involve a customer service department handling disputes about
its own products; addressing concerns between consumers and independent, third-party sellers;
and participating in a reputation-based enforcement mechanism  It also can be used as
a colloquialism for allowing a dispute to drop or as an alternative to violence.
In recent years there has been more discussion about taking a systems approach in order to
offer different kinds of options to people who are in conflict and to foster appropriate dispute
resolution.
That is some cases and some complaints in fact ought to go to a formal grievance, to a court to
the police to a compliance officer or to a government IG. Other conflicts could be settled by the
parties if they had enough support and coaching and yet other cases need mediation or
arbitration. Thus alternative dispute resolution usually means a method that is not the courts.
Appropriate dispute resolution considers all the possible responsible options for conflict
resolution that are relevant for a given issue
ADR can increasingly be conducted online, which is known as  which is mostly a buzzword and
an attempt to create a distinctive product). It should be noted however that services can be
provided by government entitie and as such may form part of the litigation process. Moreover
they can be provided on a global scale, where no effective domestic remedies are available to
disputing parties as in the case of the  and domain name disputes. In this respect ODR might not
satisfy the alternative element of ADR.
The Code of Civil Procedure (Amendment) Act 1999 inserted  Section 89  providing for settlement of
disputes outside the Court and additionally inserted Rule 1 of Order X to the Code. Section 89 confers
the jurisdiction on the court to refer a dispute to an ADR method whereas Rules 1 A to 1 C of Order X
lay down the way in which the jurisdiction is to be exercised by the court. The court explains the
alternatives concerning ADR method to the parties permits them to take a method by consensus and
if there's no consensus  proceeds to choose the method.
 Dispute settlement outside the Court (Section 89)
 Section 89 of the Code of Civil Procedure 1908 provides for the settlement of disputes outside the Court
and makes a provision that once it seems to the court that there exist components of a settlement which
can be acceptable to the parties, the court shall formulate the terms of settlement and provide them to the
parties for observations and when receiving the observations of the parties, the court could develop the
terms of a doable settlement and refer for—
(a) Arbitration;
(b) Conciliation;
(c) Judicial settlement 
(d) Mediation
Further Section 89 provides that when a dispute is referred for arbitration or conciliation, the provisions
of the Arbitration and Conciliation Act 1996 shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the purview of the provisions of Arbitration and
Conciliation Act 1996. In case of Lok Adalat, the provisions of sub-section (I) of Section  20 of the Legal
Services Authorities Act 1987 shall apply.

 In regard to the above provisions a compulsory duty has been assigned to the civil courts to endeavour
for settlement of disputes through an ADR procedure.

 The objective of Section 89 is to confirm that the court makes an endeavour to facilitate out-of-court

settlements through  ADR  processes before the trial commences.
 Thus, Alternative Dispute Resolution (ADR) which at one time was thought of as a voluntary act on
the part of the parties has currently obtained statutory recognition with the enactment of Arbitration and
Conciliation Act, 1996 Legal Services Authorities Act 1987 and also the incorporation of ADR
mechanisms envisaged in Section 89 and Order X Rules 1 A 1 B and 1 C within the Code of Civil
Procedure 1908 is an extra radical step taken by law makers for promoting ADR in India. Thus,
the Indian law-makers have currently created adequate provisions in law to facilitate introduction of ADR
mechanisms in bangladesh.

There is flexibility within the use of ADR procedures. The flexibility is available within the procedure

and also within the process to get to a decision .The solutions may be problem-specific. The rigidity of
precedent as utilized in adversarial technique of dispute-resolution would not interfere in the way of
finding solutions to the disputes with creative means.
 Thus, the growth of ADR strategies can give access to several litigants. It’ll facilitate in reducing the
excess work load that's placed on the judiciary. Once the cases unfinished before the judiciary become
manageable the courts would be able to improve the standard of their decisions. This would have a great
impact in improving not only the access to justice but even the standard of justice.

  Ans.to.the.q.no.3
Section 89A except in a suit under the Artha Rin Adalat Ain, 2003 (Act No. 8 of 2003) after filing
of written statement, if all the contesting parties are in attendance in the Court in person or by
their respective pleaders [the Court shall], by adjourning the hearing, mediate in order to settle
the dispute or disputes in the suit, or refer the dispute or disputes in the suit 4[to the concerned
Legal Aid Officer appointed under the Legal Aid Act, 2000 (Act No. 6 of 2000), or] to the
engaged pleaders of the parties, or to the party or parties, where no pleader or pleaders have
been engaged, or to a mediator from the panel as may be prepared by the District Judge under
sub-section (10) for undertaking efforts for settlement through mediation.
 
 
 
When the reference under sub-section (1) is made through the pleaders the pleaders shall by
their mutual agreement in consultation with their respective clients, appoint another pleader not
engaged by the parties in the suit or a retired judge or a mediator from the panel as may be
prepared by the District Judge under sub-section (10) or any other person whom they may
seem to be suitable, to act as a mediator for settlement: Provided that, nothing in this sub-
section shall be deemed to prohibit appointment of more than one person to act as mediator
 
 
Provided further that a person holding an office of profit in the service of the Republic shall not
be eligible for appointment as mediator
 
 
(3) While referring a dispute or disputes in the suit for mediation under sub-section (1) it shall be
for the pleaders, their respective clients and the mediator to mutually agree on and determine
the fees and the procedure to be followed for the purpose of settlement through mediation; and
when the Court 7[ or Legal Aid Officer] shall mediate, it shall determine the procedure to be
followed, and shall not charge any fee for mediation:
 
Provided that if the pleaders, their respective clients and the mediator fail to determine the fees,
the Court shall fix the fees and the fees so fixed shall be binding upon the parties.]
 
 
(4) Within ten days from the date of reference under sub-section (1) the parties shall inform the
Court in writing whom they have appointed as mediator, and if the parties fail to appoint the
mediator during this time, the Court shall, within seven days, appoint a mediator from the panel
as mentioned in sub-section (10) and the mediation under this section shall be concluded within
60 (sixty) days from the day on which the Court is so informed, or the dispute or disputes are
referred to Legal Aid Officer, or a mediator is appointed by the Court], as the case may be,
unless the Court of its own motion or upon a joint prayer of the parties, extends the time for a
further period of not exceeding thirtydays.
 
 
[(5) The [ Legal Aid Officer or mediator, as the case may be,] shall, without violating the
confidentiality of the parties to the mediation proceedings, submit to the court a report of result
of the mediation proceedings; and if the result is of compromise of the dispute or disputes in the
suit, the terms of such compromise shall be reduced into writing in the form of an agreement,
bearing signatures or left thumb impressions of the parties as executants, and signatures of the
pleaders, if any, and the  Legal Aid Officer or mediator as the case may be,] as witnesses; and
the Court shall, within seven days from receiving the said report, pass an order or a decree in
accordance with relevant provisions of Order XXIII of the Code.
 
 
(6) When the Court itself mediates it shall prepare a report and pass an order in the manner] to
that as stated in sub-section (5).
 
 
(7) When the mediation fails to produce any compromise, the Court shall, subject to the
provision of sub-section (9) proceed with hearing of the suit from the stage at which the suit
stood before the decision to mediate or reference for mediation under sub-section (1) and in
accordance with provisions of the Code in a manner as if there had been no decision to mediate
or reference for mediation as aforesaid.
 
 
(8) The proceedings of mediation under this section shall be confidential and any
communication made, evidence adduced, admission, statement or comment made and
conversation held between the parties, their pleaders, representatives Legal Aid Officer] and the
mediator shall be deemed privileged and shall not be referred to and admissible in evidence in
any subsequent hearing of the same suit or any other proceeding.
 
 
(9) When a mediation initiative led by the Court itself fails to resolve the dispute or disputes in
the suit the same court shall not hear the suit, if the Court continues to be presided by the same
judge who led the mediation initiative and in that instance the suit shall be heard by another
court of competent jurisdiction.
 
 
(10) For the purposes of this section the District Judge shall, in consultation with the President
of the District Bar Association prepare a panel of mediators (to be updated from time to time)
consisting of pleaders retired judges persons known to be trained in the art of dispute
resolution and such other person or persons, except persons holding office of profit in the
service of the Republic as may be deemed appropriate for the purpose and shall inform all the
Civil Courts under his administrative jurisdiction about the panel
 
 
Provided that, a mediator under this sub-section, shall not act as a mediator between the parties
if he had ever been engaged by either of the parties as a pleader in any suit in any Court.
 
 
(11) Notwithstanding anything contained in the Court-fees Act, 1870 (Act No. VII of 1870), where
a dispute or disputes in a suit are settled on compromise under this section, the Court shall
issue a certificate directing refund of the court fees paid by the parties in respect of the plaint or
written statement; and the parties shall be entitled to such refund within 60 (sixty) days of the
issuance of the certificate.
 
 
(12) No appeal or revision shall lie against any order or decree passed by the Court in
pursuance of settlement between the parties under this section.
 
 
(13) Nothing in this section shall be deemed to otherwise limit the option of the parties regarding
withdrawal adjustment and compromise of the suit under Order XXIII of the Code.
 
 
Explanation-(1) Mediation under this section shall mean flexible, informal, non-binding
confidential non-adversarial and consensual dispute resolution process in which the mediator
shall facilitate compromise of disputes in the suit between the parties without directing or
dictating the terms of such compromise.
 
 
(2) Compromise under this section shall include also compromise in part of the disputes in the
suit.

Bangladesh is a country where there are numerous cases pending before various courts. The backlogs and
delays in our courts have reached such a proportion that it effectively denies the rights of citizens to
redress their grievances especially of the poor people. It has become an instance of injustice a violation of
human rights. While praying for justice the parties become part of a long protracted and torturous process
not knowing when it will end.Another important factor that hinders people’s access to justice is the cost
of the dispute resolution process. Cost is important because we live in a system in which money often
matters more than merit. People silently bearing the agonies and burns of injustice done to them in
various spheres of life without any legal relief is something that is witnessed frequently.

Mediation in Appeal.
89C(1) An Appellate Court shall] mediate in an appeal or refer the appeal for mediation in order
to settle the dispute or disputes in that appeal, if the appeal is an appeal from original decree
under Order XLI and is between the same parties who contested in the original suit or the
parties who have been substituted for the original contesting parties.
 
 
(2) In mediation under sub-section (1) the provisions of section 89A shall be followed with
necessary changes (mutatis mutandis) as may be expedient.

Mediation and Problems in the Formal Justice System

Mediation is an alternative dispute resolution process which is growing rapidly in Bangladesh. It is

chosen to address disputes by way of a voluntary procedure with the aid of a neutral facilitator who helps
the parties in reaching a settlement that is satisfactory to all the concerned parties involved in the dispute.
It is cost-effective and less time-consuming, unlike court litigations. There is no judge and hence, no one
is there to impose any decision. It is the parties who decide the outcome. One of the most important rules
in mediation is that the whole process is entirely confidential and no offer concession or admission made
by any party can be used up until a settlement is reached.

However, it is still not approached widely by the mass people and as such, they continue to suffer because
of the court based complex litigation process. According to Article 27 of the Constitution of the People’s
Republic of Bangladesh All citizens are equal before law and are entitled to equal protection of law. Most
of the Bangladeshi people cannot even afford to reach the doors of law and derive any benefits of their
services.

Sometimes the cost of litigation is further increased by the cost of bribes. For instance, in Bangladesh,
most parties (63 percent) have no option but to bribe court officials to accelerate the disposal of their
cases.Sometimes, the costs are exacerbated due to delays. As the disposal of cases is delayed, total
charges paid to the lawyers increase with consecutive court appearances. According to Transparency
International Global Corruption Report 2007, there are only 77 Supreme Court Judges and 750
Subordinate Court Judges to dispense justice to a population of nearly 150 million people in Bangladesh.

Therefore, we can see that only 5.5 judges in the lower judiciary serve every million people.

The lesser accessibility to formal justice affects women in Bangladesh even more because women are at a
decided disadvantage in their access and control of material resources mainly because of their lower
educational attainment and lesser involvement in income generating activities
NGO-based Mediation in Bangladesh

Recent developments in Bangladesh reflect a change towards out-of-court NGO-based mediation. It is an

improved variation of the traditional salish conducted by village elites to resolve various disputes that
arise in their respective localities. Here, the whole process from the filing of the complaint to the
documentation of the mediation decision is moderated and facilitated by NGO staff.

the introduction of NGO-based out-of-court mediation in Bangladesh. To provide mediation services

formed a mediation committee with the Chairman and members of the Union Parishad (Council) and the
committee also included other local elites. Since its establishment, MLAA is not only resolving local
disputes through mediation but it is also giving trainings to the local leaders and elites to change their
attitudes towards the use of law whilst conducting salish at the local level.

Ain-o-Salish Kendra referred to hereafter as provides mediation services as well as works towards

curbing violation of women’s rights through its ‘Gender and Social Justice Project

Nagorik Uddayog (referred to hereafter as NU) started out-of-court mediation in 2004. In the process of
doing so NU conducts salish with the initiatives of local government representatives that not only
increases the abidance of salish but also makes women more active.

Generally respondents approach nearby NGOs after getting a notice for settling the dispute. If a
settlement is reached, the NGO mediators note down all the terms and conditions and read it aloud for the
parties. Afterward the signatures of all the parties, witnesses and mediators are taken.

The success rate in mediation varies among NGOs. MLAA and ASK are attaining much higher success
rate in mediation in comparison to others. A look at family complaints resolved through MLAA
mediation from July 2015 to June 2016 shows that out of 3503 disputes that were available for mediation
3040 disputes were resolved through mediation after all rejected cases.
Provisions Relating to Mediation in Existing Laws

Recently the provision for mediation has been inserted in the Legal Aid (Amendment) Act 2015 where
before filing a case with the help of government legal aid, it is suggested to resolve the dispute via
mediation.the cases applied for legal aid at the pre-trial stage are resolved through pre-legal aid mediation
now.

Bangladesh International Mediation Society (referred to hereafter as BDIMS) also provides a mediation

service to help resolve civil and commercial disputes of both domestic and international nature. Its Code
of Conduct binds affiliated Mediators to confidentiality obligations. BDIMS is the first international
mediation institute of Bangladesh.

The mediation mechanism has become a part and parcel of our formal legal syestem. Moreover, there are
provisions relating to mediation of disputes in the statutory laws of Bangladesh now. The Code of Civil
Procedure 1908 (referred to hereafter as CPC) was amended to give effect to mediation. Mediation is
described in Section 89A of CPC under Explanation (1) as a “flexible, informal, non-binding,
confidential, non-adversarial and consensual dispute resolution process in which the mediator shall
facilitate compromise of disputes in the suit between the parties without directing or dictating the terms of
such compromise. Section 89C provides for scope of mediation in Appellate Court.

There is also the Family Court Ordinance 1985. After the filing of the written statement, the Family Court
shall fix a date for a pre-trial hearing of the suit. On the date fixed for the pre-trial hearing, the Court shall
try to compromise or go for reconciliation between the parties.

In the Village Court Act, 2006, it is stated that after the formation of the Village Court, the Court shall
hear both the parties and decide the issues between them. Thereafter, the Court shall take the initiative for
conciliation between the parties.

Moreover, Section 22 of Arbitration Act also provides for the scope of ‘mediation’. According to this Act,
mediation procedure can be followed at any stage of arbitration upon the consensus of all parties. At the
time of continuation of the dispute, if the parties resolve the matter amicably and request the tribunal
regarding this, the Arbitration Tribunal shall record the consensus of the decision as ‘award’ of the
Tribunal.
MLAA mediators have suggested some necessary changes in the laws and other infrastructural changes
that can make NGO-based mediation more effective. There is also a growing fear among lawyers
regarding the adverse effect of mediation, suspecting that cases being resolved quickly would reduce the
number of practicing lawyers and consequently the amount of fees to be collected from the
clients. Additionally, it can be seen that the resources allocated are not being utilized efficiently in the
mediation process.

The strategies provided by the Reform Movement, 2000  such as judges training on mediation incentives
for judges to practice mediation, motivation for lawyers, binding mediation through court decrees etc.
have amounted to a high rate of disposal of cases. Although the process is not much successful in other
civil courts, after the impressive success of mediation in family courts, mediation was gradually included
in various other civil laws in Bangladesh such as Code of Civil Procedure (CPC) following an
amendment

Conclusion:
From the analysis made above it can be concluded that mediation is still a developing concept as an
alternate dispute resolution mechanism in Bangladesh. Despite its limitations it can be said that it is
playing a vital role in ensuring justice to the public. With the courts of Bangladesh being flooded with an
overwhelming number of claims it is perhaps about time that we appreciate this concept of alternative
dispute resolution and take appropriate steps to facilitate mediation not merely by bringing amendments
in the laws but also enforcing them properly in the future. It should not be denied that with the increasing
number of NGO mediations court-connected mediations and law provisions regarding mediation
Bangladesh is surely going to have a bright future in resolving disputes through mediation