Whether Advocate can be compelled to disclose professional communication with his client?

 It appears from the materials on record that, the examination of petitioner's lawyer as a witness in the present proceeding is meant for eliciting certain essential facts in disproof of allegations of fraud. The essential facts include the answers of the lawyer as to whether the client signed in her presence and she had explained to her the terms and conditions of the agreement before it was signed. The witness, in our opinion, cannot withhold such essential answers claiming privilege under Section 126 of the Act. Such information are very valuable for the decision of the matter in dispute before the Family court and can never be taken as offending the bar against disclosure of the professional communications saved by law. They do not have any bearing or relevance to the matters connected with the engagement of a lawyer for conduct of the litigation.

11. The impugned order of the lower court in I.A. 1833/2018 permitting examination of petitioner's lawyer cannot therefore, be said to suffer from any illegality warranting our interference. Same is the view that we take in respect of order on I.A. 1832/2018 also as we deem it just and proper to give the respondent one more opportunity to re-examine P.W. 1 with respect to the facts he had omitted during her former examination.

12. Learned counsel for the petitioner submitted that, if the courts tend to allow the parties to cite and examine the lawyer on the opposite side as witness, it would be very embarrassing and also demeaning to the practitioners of law. We are of the clear view that the courts have necessarily to avoid such embarrassment being caused to the lawyers and this could be ensured by permitting examination of lawyers only in cases where their testimony in court is absolutely essential and inevitable. The court shall be circumspect in summoning lawyers cited as witnesses, whether by their own clients or opposite parties, except when their examination is unavoidable. The request for examination should not be granted mechanically and for mere asking. If a particular matter or information could be effectively proved by other evidence, the courts could certainly decline to order examination of the lawyer to the extent possible. No hard and fast rule, however, could be laid in this respect and it is ultimately what a court informed by prudence and wisdom would decide in a particular case before it, depending on the facts and circumstances of each case.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 228 of 2018

Decided On: 15.01.2019

 Reshma Majeed  Vs. Shameer Babu

Hon'ble Judges/Coram:

C.K. Abdul Rehim and T.V. Anilkumar, JJ.

Citation: AIR 2019 Kerala 89

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Whether a party can back out from mediation settlement after pocketing money under said settlement?

In this case, disputes involved in the suit had been referred to the Delhi High Court Mediation & Conciliation Centre vide order dated 5th May, 2011 within the meaning of Section 89(1)(d) and the settlement has been arrived at before the learned Mediator after comprehensive mediation sessions held as many as on eight occasions in the presence of the counsel for the parties and thereafter, parties had reached an amicable settlement, which has been reduced in writing by the learned Mediator and has been duly signed by not only the parties but their counsels as well on 5th August, 2011. Thereafter, Mediator has sent the 'Settlement Agreement' to the court. No such objection was raised either by Defendant No. 1 or her counsel immediately after the settlement was drawn and signed by the parties on 5th August, 2011. It is only when the matter has been taken up by the Court after about fifteen days the new counsel for Defendant No. 1 has tried to assail the settlement on flimsy grounds, even though Settlement Agreement had been acted upon, inasmuch as, Defendant No. 1 had accepted two post dated cheques bearing Nos. 520237 and 520238 from Defendant No. 2; Defendant No. 2 has also paid pay order for `15 lakhs to the Plaintiff in Court on 30th August, 2011.

12. In my view, if such pleas are sustained the very sanctity and purpose of an amicable settlement through the process of mediation, would stand totally eroded. In Double Dot Finance Limited v. Goyal MG Gases Ltd. 2005 (2) AD Del 534 though that case arose out of the arbitration proceedings, a Single Judge of this Court has observed as under:

If such pleas are sustained, the sanctity and purpose of 'amicable settlements' between the parties would stand totally eroded. Amicable resolution of disputes and negotiated settlements is 'public policy in India'. Section 89 of the Code of Civil Procedure, Arbitration and Conciliation Act, 1996 as well as Legal Services Authorities Act, 1995 call upon the Courts to encourage settlements of legal disputes through negotiations between the parties. If amicable settlements are discarded and rejected on flimsy pleas, the parties would be wary of entering into negotiated settlements and making payments thereunder as a shrewed party after entering into a negotiated settlement, may pocket the amount received under it and thereafter challenge the settlement and reagitate the dispute causing immeasurable loss and harassment to the party making payment thereunder. This tendency has to be checked and such litigants discouraged by the Courts. It would be in consonance with public policy of India.

IN THE HIGH COURT OF DELHI

CS (OS) No. 2248/2010

Decided On: 01.09.2011

 Naveen Kumar Vs.  Khilya Devi and Ors.

Hon'ble Judges/Coram:

A.K. Pathak, J.

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Whether parties can back out from mediation settlement?

 Defendants have not disputed the fact that they have signed the settlement agreement before the Learned Mediator. The said agreement is duly signed by all the parties and the same agreement is also signed by their respective counsel. The only reason to delete para VI of the settlement as given by the defendant No. 2 is that the plaintiff has embarrassed the defendant No. 2 in the presence of her family members at her matrimonial home.

19. I feel that it is not a valid ground to set aside the settlement reached between the parties. On emotional ground the defendant No. 2 cannot turn around and oppose the said settlement which has already been agreed by the parties at the time of modification proceedings. No sufficient reasons in this respect have been assigned by the defendant No. 2, therefore, prayer made in the application cannot be accepted.

20. The similar situation has arisen in the matter reported in Jasbir and Ors. v. State and Anr. 142 (2007) DLT 141 where the parties after settlement before the Learned Mediator tried to wriggle out of the settlement proceedings, which arrived at the time of Mediation proceedings, wherein this Court in para 9 has observed as under:

The settlement was arrive at during mediation proceedings. The Legislature has amendment Section 89 of the code of Civil Procedure in the year 2002. There is an all round attempt by the Legislature and Judiciary, as well as the Executive, to promote the settlement of disputes through the process of Mediation. Therefore, once disputes between the parties have been settled by the process of mediation, it would be in the public interest as well as to attach importance to such a process and treat the settlement as a solemn settlement. Otherwise, the movement of mediation may itself suffer if the parties are given to understand that even after they agree for settlement, one of the parties can still back out.

IN THE HIGH COURT OF DELHI

I.A. No. 12888/2008 in C.S. (OS) No. 1495/2005

Decided On: 06.07.2009

Rajesh Kumar Bajaj Vs. Purshotam Lal Bajaj and Ors.

Hon'ble Judges/Coram:

Manmohan Singh, J.

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Whether court should adjourn case for reasonable time to allow parties to fulfill terms of agreement entered in mediation?

Then, the question is what the Criminal Court will have to do in such cases namely whether the Court has to wait for the period mentioned in the agreement so as to enable the parties to fulfill the terms of the agreement and if it is not fulfilled proceed with the case. It is true that it is a difficult position to be answered in cases under Sections 138 of Negotiable Instruments Act. The cases under this Act has to be disposed of within six months from the date of filing of the complaint as per Section 143(3) of the Act. Further, this aspect was considered by the Hon'ble Supreme Court in the decision reported in Indian Bank Association & Others v. Union of India & Ors. (MANU/SC/0387/2014 : 2014 (2) KLT 788 (SC) : ILR 2014 (2) Ker. 469), and gave guidelines as to how the criminal courts have to proceed with the cases filed under Section 138 of the above Act. So, it is clear from the above decision that the effort must be made by the Magistrate to dispose of the cases expeditiously. Further, in the decision reported in Damodar S. Prabhu v. Sayed Babalal H (MANU/SC/0319/2010 : 2010 (2) KLT 587 (SC) : 2010 (2) KHC 428), the Hon'ble Supreme Court has held that in cases where the accused in 138 cases are unnecessarily prolonging the case, though, it is a compoundable offence and if the compounding was not done at the earliest point of time, then the Court can record compounding at the subsequent stages before the Magistrate court by imposing 10% of the cheque amount as costs and if it is allowed in the Sessions Court or High Court 15% of the cheque amount to be imposed as costs and if it is before the Supreme Court 20% has to be imposed as costs to be paid and to be deposited with the Legal Services Authority. Further, in the same decision, some discretion was given to the courts to reduce the amount to be imposed as cost or even dispense with payment of me costs in appropriate cases. This was intended to prevent the unnecessary delay in disposing me case filed under Section 138 of the Negotiable Instruments Act by the accused in the case. So, under the said circumstances, if the unreasonable longer periods were provided in the agreement for payment of the amount, then the court cannot be blamed for insisting for adducing evidence by the complainant in view of the dictum laid down in me above decisions. But, at the same time, in order to promote mediation as a process for an Alternative Disputes Resolution in monitory transactions as in the cases under Section 138 of the Act as it was really a civil dispute which was converted into a criminal prosecution with a view to make the drawer of the cheque to honour the cheque than to send them to prison as mentioned in the decision reported in Damodar S. Prabhu's case (supra), Court can allow reasonable time to parties to fulfill the terms of the agreement so as to avoid prolonged litigation for realisation of the amount So, under the said circumstances, in order to promote the settlement arrived at in the mediation if a reasonable time is provided in the mediation agreement namely, up to 6 months and if the parties are willing to abide by the condition, then it is always better that court can wait for that much time to allow the parties to honour the settlement that has been arrived in the mediation and the purpose of the mediation is to restore the relationship between the parties and that can be achieved by that and that will give a boost for a process of mediation to be used by the parties to resolve their disputes amicably. If the accused did not pay the amount and it was referred for mediation at the request of the accused only as a method of delaying the matter, then the court must take it as a serious one and later in the course of trial, if he wants to compound a case on the basis of the settlement agreement and even if, the complainant is prepared for the same, that can be allowed only strictly in accordance with the guidelines provided by the Hon'ble Supreme Court in Damodar S. Prabhu's case (supra) as it will, give a message to the defaulting accused and making him to understand that if he has agreed to pay the amount within the particular time as a party to the settlement in the mediation, he should honour the same in letters and spirit of the agreement, otherwise he will have to pay the penalty for the same. So, under the circumstances, this court feels that since six months period is provided will be over by 17.08.2014, the learned Magistrate is directed to keep the case till that date without insisting for evidence so as to allow the parties to honour the settlement which has been arrived in the mediation process and if the amount is not paid and the application for compounding is not filed within that time, then the learned Magistrate is directed to proceed with the case, considering the principles laid down in this decision regarding the mediation agreement which has not been honoured by the accused and dispose of the case in accordance with law. If a compounding application is filed on the basis of the same agreement later, then that can be taken only as a delaying process by the accused and it can be accepted only in terms of the guidelines provided in Damodar S. Prabhu's case (supra).

IN THE HIGH COURT OF KERALA

Crl. M.C. No. 1864 of 2014

Decided On: 10.07.2014

 Sreelal  Vs.  Murali Menon

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Whether court should permit parties to adduce evidence if there is allegation that mediation settlement was obtained by force?

 Learned counsel for respondents had submitted that although signatures of authorized representative of respondent on the mediated settlement are not denied but he had no instructions to agree to the terms of the settlement as reflected in the mediated settlement. It was also submitted on behalf of respondents that signatures of authorized representative of respondent were obtained forcibly and so aforesaid settlement is not binding upon the parties and the parties have been rightly referred to mediation again vide impugned order. Thus, it was submitted that there is no illegality in the impugned order and the decisions cited are distinguishable.

Since, question of fact are being raised regarding voluntariness of the mediated settlement, therefore, it would be appropriate that an opportunity is granted by trial court to respondents to lead evidence to show that the mediated settlement was not a voluntary one.

IN THE HIGH COURT OF DELHI

Crl. M.C. No. 2498/2014, 

Decided On: 09.02.2015

 Manoj Chandak Vs. Tour Lovers Tourism (India) Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Sunil Gaur, J.

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Whether parties can unilaterally withdraw from agreement entered before mediator?

The mediator


appointed will have to report to the court as to whether the matter is

settled or not settled. In case, the mediation has not taken place; he

will have to report, 'not mediated'. He has no duty other than the

above. The mediator cannot forward any agreement to the court to

the effect as to what course of procedure to be followed by the court

for passing a decree.

      8.    However, when the parties settled the disputes by signing

an agreement, detailing the procedures to be followed to work out

such settlement, certainly, that agreement is having all the

characteristics of compromise in terms of Order XXIII Rule 3 CPC.

Once a compromise is arrived at between the parties, it is a

settlement of dispute referred to in the mediation pending before the

court. When the parties to the dispute sign the compromise, this

settlement comes to the public domain.           Confidentiality of the

mediation covers the matters only upto the stage of reaching at a

settlement or till the termination of the mediation. The parties when

put their signature by accepting the terms and conditions in writing,

the agreement is having all the characteristics of the compromise as

referred to under Order XXIII Rule 3 CPC and no party can withdraw

from it unilaterally. The moment it reaches the court, the court will


have to act upon the compromise and to pass a decree in terms of

the compromise.       No doubt, the court concerned will have to be

satisfied with the legality of the compromise as well as jurisdiction to

pass a decree based on such compromise. Once a settlement has

been arrived at between the parties in relation to the matter in the

suit, that concludes as far as the court concerned in relation to the

dispute resolved in the settlement. It is to be noted that the court

recording the compromise is entering into a satisfaction in terms or

Order XXIII Rule 3 CPC and the court is not merely acting upon

agreement. If one party wants to withdraw from the agreement, the

court has every power to decide whether the agreement was effected

lawfully or not. If it is proved to the satisfaction of the court that the

dispute has been settled wholly or in part by a compromise, the court

shall pass a decree in accordance with the agreement. The proviso

to Order XXIII Rule 3 has a significant guidance in this regard.

Therefore, if in the case of denial of an agreement or in the case of

unilateral withdrawal, the court will have to enter a satisfaction

whether there was a compromise of the subject matter of the suit or

not. In fact, in the case of denial or withdrawal of the agreement, the


court is bound to frame a question in this regard and decide the

matter as contemplated under Order XXIII Rule 3 CPC.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                   MR. JUSTICE A.MUHAMED MUSTAQUE

            15TH DAY OF FEBRUARY 2017

                                          OP(C).No. 3131 of 2016 (O)
                                                
         MOHANAN P.K.,
         V
          SUDAKSHINA RAMAKRISHNAN,
           

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