Mediation cannot be imposed on unwilling party in family disputes without mutual consent and realistic settlement possibility, aligning with legislative intent in amended CPC Section 89 and Mediation Act, 2023, distinguishing from mandatory commercial mediation.

JUDGMENT :

RAJESH S. PATIL, J.

“The question before me is to decide, whether the parties who are closely related should be referred to mediation, when one of them is not willing to go for mediation.”

1. The present Suit is filed for specific performance of a family arrangement of 1994. Plaintiff No. 1 is the sister of Defendant Nos. 1 and 5. In the Suit, an Interim Application has been preferred by Defendant No. 1 under the provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908 (for short “CPC”). Plaintiffs have filed their reply to the said Interim Application. Defendant No. 1 further filed his Affidavit in re-joinder. Hence, the pleadings in the Interim Application are complete.

2. On 27 March, 2026, when the Interim Application was listed for hearing, after the Counsel for Defendant No. 1 initially narrated the facts, this Court suggested the parties to consider the option of mediation as the parties are closely related to each other. On the said suggestion, Dr. Tulzapurkar, learned Senior Counsel for Defendant No. 1 submitted that, he will take instructions from his client on the suggestion which has fallen from the Court. Hence, the matter was adjourned to 15 April, 2026.

3. When the matter was called out on 15 April, 2026, Mr. Dwarkadas, Ld. Sr. Counsel appeared for the Plaintiffs and made his submissions on the issue of dispute between the parties to be referred to mediation as Dr. Tulzapurkar was not available. Mr. Dwarkadas submitted that he would talk to Dr. Tulzapurkar on the issue about the parties opting for mediation. Hence, the matter was adjourned to 16 April, 2026.

4. On the next day, when the matter was called out, after hearing the parties following Order was passed :-

“1. Heard Mr. Dwarkadas, learned Senior Counsel for some time. By consent, stand over to 28.04.2026. The matter to come up under the caption “For Directions”.

2. Post lunch, Mr. Purohit, learned Senior Counsel for Defendant No. 1 orally submitted that a news item is published online, which supports the concern raised by him in the morning session. He tendered a photocopy of the news item. He submitted that it is the Plaintiff who only can publish this news. On instructions, he submits that he would like to go on with the matter on merits. He further submits that if the Plaintiffs genuinely want to give an offer for settlement, they can do so and his client will immediately respond to the same.

3. Mr. Janak Dwarkadas, learned Senior Counsel for the Plaintiffs that the news item which has been tendered by Defendant No. 1 is not published by his client and they have no role in the publishing the same. If Defendant No. 1 is not interested to settle the dispute amicably, he will proceed with his arguments on the next date of hearing.

4. Let this matter to come up on board on 28.04.2026 at 1.00 p. m., in the meanwhile, parties are free, without prejudice to their rights and contentions to exchange their settlement proposal.”

[Emphasis Supplied]

5. Thus, the parties were at liberty without prejudice, to exchange their settlement proposals. Dr. Tulzapurkar, Ld. Sr. Counsel for Defendant No.1, submitted that on the previous hearing i. e. 16 April, 2026, the Plaintiffs were directed to give their offer without prejudice to the rights and contentions of both the parties. However, there was no offer given and only a communication in the form of an email was sent by the Plaintiffs on 28 April, 2026 around 12.00 noon.