I INTERNAL ASSIGNMENT

SUBJECT: CODE OF CIVIL PROCEDURE

TOPIC: CRITICAL ANALYSIS OF, “SUITS BY AND AGAINST

GOVERNMENT AND GOVERNMENT OFFICIALS IN THEIR
OFFICIAL CAPACITY”

MADE BY: RIYA GUPTA

COURSE: B.A. LL.B (Hons.)

DIVISION: ‘B’

PRN: 16010125131
“Suits by and against Government and Government Officials in their Official Capacity”

ABSTRACT:

The Code of Civil Procedure has laid down the procedure to institute a suit in accordance
with the provisions of the Code. Under the Code, two kinds of suits, i.e. General and Suits in
Particular cases can be instituted by the aggrieved party against the other party.

Suits by and against the Government and Public Officers in their official capacity has to be
instituted in compliance with Section 79 to 82 along with Order 27 of the Code. Section 79
provides the authority to be named as plaintiff or defendant, as the case may be, in a suit by
or against the Government. Section 80 provides for the notice to be served to the concerned
Government and Public Officer, two months before the filing of the suit, with few exceptions
to the rule. Section 81 provides that the Public Officer shall not be arrested and property not
be attached, unless the same is in execution decree and Section 82 provides that a decree
passed against the Government or Public Officer shall not be executed except where it
remains unsatisfied, since the decree is passed, for three months.

Section 79 to 82 are the substantive provisions which lays down the general principles
whereas Order 27 is a procedural provision which facilitates the application of the general
principle and substantive provision in the respective suits. These Provisions only provide
with the procedural aspect with respect to the institution of the suit and does not provide for
the determination and implementation of substantive rights and liabilities that are endowed
upon the parties to such suits. The same shall be construed by interpreting the Constitutional
Provisions.1

The Object of this Assignment is to analyse the scope and extent of Immunity endowed upon
the Government and Public Officers in light of the above discussed Provisions of the CPC
and to bring to light the drawbacks of the same.

1
Bhagchand v. Secy. Of State, (1926-27) 54 IA 338: AIR 1927 PC 176.
ANALYSIS OF SECTION 79: PARTY TO THE SUIT

Section 792 of the CPC provides the authority to whom the Notice shall be addressed to, in a
suit by or against the Government and Public Officers as plaintiff or defendant, as the case
may be.

Section 79 being procedural in nature, clearly enumerates the situation wherein it is

mandatory to make the concerned Government or Public Officer, acting in its official
capacity, a party to the suit in order to allow the suit and for it to proceed to trial.

The Supreme Court in its Landmark Judgment laid down that, the requirement of provision
contained in Section 79 CPC as well as Order 27, Rule 1 CPC is not merely a procedural
formality, but is essentially a matter of substance and of considerable significance whereby
the special provision as to how the Central Government or the State Government may sue or
be sued has been indicated. 3

The Court also observed that in case of Misnomer, Non-Joinder or Mis-joinder of Parties to
the suit, the court shall order the correction of title in case of Misnomer and the said defect
shall not be fatal to the maintainability of the proceedings whereas in the case of Non-
Joinder, the proceeding shall be held to be non-maintainable.4

In a suit by or against the Central Government, in furtherance of Article 300 of Constitution

and under Section 79 r/w order 27, Rule 15 of CPC, the authority to be named as the Plaintiff
or Defendant, as the case may be shall be Union of India and thus where an appeal was filed
by the Secy. Of Department working under the Government in accordance with Article 77 of
the Indian Constitution, the same was held to be filed under the Central Government as the
nomenclature given in the title clause is not conclusive in nature.6

2
Suits by or against Government— In a suit by or against the Government, the authority to be named as plaintiff
or defendant, as the case may be, shall be—
(a) in the case of a suit by or against the Central Government, the Union of India, and
(b) in the case of a suit by or against a State Government, the State.
3
Yogesh Chandra Das v. Chief Secretary of Assam, AIR 1990.
4
Chief Conservator of Forests, Government of A.P. Vs. Collector, AIR 2003 SC 1805.
5
Suits by or against Government— In any suit by or against the Government the plaint or written statement
shall be signed by such person as the Government may, by general or special order, appoint in this behalf,
and shall be verified by any person whom the Government may so appoint and who is acquainted with the
facts of the case.
6
Secretary, Ministry of Works & Housing, Government of India and Ors. v. Mohinder Singh Jagdev, JT 1996
(8) 46.
Thus, the object of enacting 79 could be inferred as one which facilitates the further
procedural requirements mentioned under Section 80 to 82 of the CPC in a case concerning
the institution of suit by or against the Government and Public Official in their official
Capacity. The Provision is interpreted by the Apex Court as a mandatory provision, the
compliance of which is essential in order to give effect to the other provisions for instituting a
suit under Section 80 of the CPC.

ANALYSIS OF SECTION 80: NOTICE TO THE GOVERNMENT OR PUBLIC

OFFICER

In suits of General Nature, there is no requirement of serving of Notice to the Defendant by

the Plaintiff prior to the filing of the Suit, However, in case of Suits of Special Nature such as
one instituted against the Government or Public Officer, for an act done in its Official
Capacity, it is mandatory for the aggrieved party to serve the concerned Government or
Public Officer with a notice in writing, stating the cause of action, description and place of
residence of the plaintiff and relief claimed by him/her, two months prior to the filing or
Institution of the Suit.

The Section provides for two types of Cases, i.e., Suits Against the Government and Suits
against Public Officers, for the acts done in their Official Capacity or in furtherance of its
Official Capacity.

Thus, a Notice shall be served to the Public Officer only when the alleged incident is done by
him/her in his/her Official Capacity or in furtherance of its Official Capacity and shall
exclude the acts done in its Personal Capacity.7 Section 2 (17) of the Code enumerates an
exhaustive list of Individuals that shall be considered as Public Officers for the purpose of
this Act. Thus, it could be inferred that there is an absolute necessity for a nexus to be
established between the alleged incident, which shall include any illegal omissions as well as
past and future acts and that the same is done in the Official Capacity of the Public Officer.8

With respect to Section 80, the Law Commissions Report recommended that the provision
pertaining to the Issuance of Notice by the aggrieved party before the filing of Suit Under

7
State of Bihar v. Jiwas das, AIR 1971 Pat 1971; State of Maharashtra v. Chander Kant, AIR 1977 SC.
8
Samanthalal Koti v. Pothuri Subbiah AIR 1918 Mad 62, State of Maharastra v. Chander Kant (1977) 1 SCC
257 at p.260.
Section 80 of CPC should be deleted9 as in a democratic country, there shall be no distinction
made between the Citizen and the State10, though the said recommendation was rejected by
the Legislative Assembly on account of ‘Public Interest’11, the Legislature by way of the
Amendment Act of 1976, inserted sub-clause (2) and (3) under Section 80 which allows the
Institution of Suit with the leave of Court without issuing the Notice provided that the relief
shall not be granted without giving the concerned Government or Public Officer, as the case
may be, a reasonable opportunity to show cause in respect of the same and the prohibition to
dismiss the suit merely on the grounds of Technical Defects, respectively.

The object of the said provision is to provide a reasonable time to the concerned Government
or Public Officer to consider its legal position, consult with legal experts and to decide its
position, i.e. whether it favours to settle the claim or proceed to litigation.

This was emphasised by the Apex Court in the case of, “Bihari Chowdhary v. State Of
Bihar”12 wherein it observed that,

“When we examine the scheme of the Section it becomes obvious that the Section has been
enacted as a measure of public policy with the object of ensuring that before a suit is
instituted against the Government or a public officer, the Government or the officer
concerned is afforded an opportunity to scrutinize the claim in respect of which the suit is
proposed to be filed and if it be found to be a just claim, to take immediate action and
thereby avoid unnecessary litigation and save public time and money by settling the claim
without driving the person, who has issued the notice, to institute the suit involving
considerable expenditure and delay. The Government, unlike private parties, is expected to
consider the matter covered by the notice in a most objective manner, after obtaining such
legal advice as they may think fit, and take a decision in public interest within the period of
two months allowed by the Section as to whether the claim is just and reasonable and the
contemplated suit should, therefore, be avoided by speedy negotiations and settlement or
whether the claim should be resisted by fighting out the suit if and when it is instituted.
There is clearly a public purpose underlying the mandatory provision contained in the
Section insisting on the issuance of a notice setting out the particulars of the proposed suit

9
Law Commission’s Fourteenth Report, pp. 475-476., http://lawcommissionofindia.nic.in/1-50/index1-
50.htm.
10
Law Commission’s Twenty-seventh Report, pp. 21-22. http://lawcommissionofindia.nic.in/1-
50/Report27.pdf.
11
Report of the Joint Committee.
12
AIR 1984 SC 1043.
 and giving two months‟ time to Government or a public officer before a suit can be
instituted against them. The object of the Section is the advancement of justice and the
securing of public good by avoidance of unnecessary litigation.”

This Judgement makes it crystal clear that the object behind the said provision is in
consonance with the Necessary Public Policy Measures while also upholding the Interest of
Justice.

On reading of Section 80, an inference could be drawn that the Section is mandatory in nature
and no exception to the same shall be made admissible except as provided under Section 80
(2). The imperative language used in the Section empowers the Court to reject a plaint that
does not comply with the essential requirements as laid down in the said Provision.13 Though,
it is evident that the Provisions under the Code is Procedural in Nature and the Substantive
rights must be interpreted and applied in accordance with the provisions of the Indian
Constitution, the S.C has held that Section 80 of the Code is not Procedural but Substantive in
Nature.14

In order to institute a suit against the Government, it is essential for the cause of action to
arise before the serving of the Notice. Thus, where a notice is served before the cause of
action has arisen, the said Notice shall be deemed invalid and the aggrieved party shall be
barred from filing a suit against the Government. Section 80 also makes it mandatory to file
the suit only on the expiration of the period of two months from the date, the notice has been
served.15

Though the Provision implies a mandatory duty on the Government and Public Officers to
reply in appropriate time frame to the said notice, in the current scenario, it has been seen that
the objective which underlines the procedure stated in Section 80, i.e. to provide the
Government and Public Officer with a reasonable opportunity to determine its legal stance
and act accordingly, is not met with since the Government Officials and Public Officers has
time and again acted in an unresponsive manner causing grave difficulty and inconvenience
to the aggrieved party.

With respect to the compliance mentioned in section 80, the Supreme Court has time and
again held that the said compliance requirement could be waived off by the Concerned

13
Jagadish Chandra v. Debendraprasad AIR 1931 Cal 503.
14
Kanhayalal Osawl v. Govt. of India, AIR 1974 Guj 37.
15
Laxmi Narain v. State AIR 1977 Pat 73.
Government or Public Officer in furtherance of Interest of Justice since it shall not affect the
Jurisdiction of Court to entertain the Suit.16 However, it is the duty of the Court to see to it
that the Government or the Public Officer has the right to waive off the compliance
requirement, in light of the facts of the case.17

Section 80(2):

Section 80 (2) is an exception to the general principle mentioned in Section 80 (1), inserted
by the Amendment Act of 1976. The said exception empowers the plaintiff to institute a suit,
with the leave of the Court, against the Government or Public Officer, without issuing a
Notice under Section 80 (1), in order to claim an immediate relief.

Thus, the most important condition that the Plaintiff has to satisfy before the Court is the
‘Immediate Relief’. In order to establish the contention of need of ‘Immediate Relief’, the
court shall consider the situation and the repercussion that would entail if the immediate
relief, so claimed is not granted to the Plaintiff leading to irreparable loss or injury and
miscarriage of Justice.18 However, the same shall be granted only when a reasonable
opportunity has been provided to the Government or Public Officer to show cause in respect
of the relief claimed by the Plaintiff.

On reading the two Proviso of Section 80, it is well established that while section 80(1) is
mandatory in nature as could be understood with the insertion of the word ‘shall’ in the same
whereas 80(2) is not mandatory but discretionary in nature and the discretion lies with the
Court, thus the word ‘May’ is inserted in the said Proviso.

Section 80 (3):

In the Amendment Act of 1979, Section 80 (3) was inserted in order to ensure that justice
shall not be denied to the aggrieved party merely on the grounds of technical defects
envisaging the Notice, provided that the essentials to be contained in the Notice as stated in
Section 80 (1) has been stated accordingly.

16
Dhina Singh v. Union Of India, AIR 1958 SC 274.
17
Commr. Of taxes v. Golak Nath, AIR 1979 Gau 10.
18
Municipality v. Gas Authority of India Limited, AIR 2006.
Therefore, no Notice shall be dismissed or held invalid on the grounds of technical error or
error in the delivery of notice or that the notice is served in an improper manner.19

Writ Petition:

In accordance with the Provision of Section 80, it can be inferred that a writ petition filed
under Article 226 and 32 of the Indian Constitution does not constitute a ‘Suit’ and therefore
there is no essential requirement to serve a Notice in accordance with Section 80 of the CPC
before filing a Writ Petition in the High Court and Supreme Court respectively.20

Analysis of Section 81 & 82 of CPC:

The Sections as has been enumerated above, by way of amendment has eliminated certain
cumbersome requirements. Before amendment a court had to send a report to the state
government before passing a decree, however the same cannot be executed unless all the
conditions specified in Section 79-80 along with Order 27 are complied with.21

Order 27:

As stated above, Order 27 facilitates the implementation of Genral Principles as enumerated

under Section 79-82 of the CPC. With respect to Order 27 Rule 1, which states that, in a suit
by or against government, a plaint or written statement shall be signed by a person appointed
by govt. Further it shall be verified by a person who is acquainted with the facts. The sanction
to sign must be prior to the institution otherwise the signing shall be by an incompetent
person. A retrospective sanction cannot cure the defect.22

Order 27 Rule 2 provides that the Person authorized to act on behalf of the Government shall
be deemed to be recognized agent.

Order 27 Rule 3 provides that in a plaint of a suit by or against govt. instead of providing all
detail of plaintiff or defendant it is sufficient to insert appropriate name as provided in section
79 of CPC, 1908.

19
Disha Construction & Ors V. State of Goa & Anr., AIR 2012 SC.
20
N. Parameshwara Kurup v. State of T.N., AIR 1986 Mad. 126.
21
State v. Abdur Rahman, AIR 1960 J & K.
22
State of Rajasthan v. Jaipur Hosiery Mills Pvt Ltd., AIR 1997.
Order 27 Rule 4 provides that Government Pleader shall be the agent of Government. Order
27 Rule 5 provides certain privileges that are endowed upon the Government and Public
Officers. These are:

 Court will allow a reasonably time to government to answer the plaint so as to make
necessary communication between government and government pleader. The benefit
of Rule 5 is available to the government after it has made it appearance also.
 Order 27 Rule 5A provides that in suit against a public officer in respect of any act
alleged to have been done by him in his official capacity, the government shall be
joined as a party to a suit.
 Order 27 Rule 5B provides that it is a duty of a court in a suit against a government
or public officer acting in his official capacity to make attempt at first instance for the
settlement of disputes between parties. Further if finds at any stage of proceeding that
there is reasonable possibility for settlement between parties court will adjourn the
case for such a time to enable attempt to solve a dispute.
 Order 27 Rule 6 provides that court can direct attendance of person who is able to
answer any material question relating to the suit against a govt.

Comments, Suggestions and Conclusion:

The Code of Civil Procedure has provided an exclusive provision enumerating the Procedural
Aspect and machinery to be applied in a suit by or against the Government or Public Official,
acting it its Official Capacity in Section 79-82 along with Order 27.

One significant drawback of the provision is the fact that it focuses and provides majorly for
the institution of the suit against the government or Public Official, but provides no
procedural requirement that shall be adhered by the Government or Public Official while
instituting a suit against the Citizen. This endows the Government/Public Official with
discretionary powers that may prove detrimental to the interest of the citizen and Justice.

The Major lacuna in the said provision is the mandatory requirement for the aggrieved
party/plaintiff to serve the Notice to the Government or Public Official in accordance with
Section 80(1) of the Act. This should be deleted in order to uphold the principles enshrined in
the Constitution of Equality. In a country as corrupt and bureaucratic as India, this provision
is a major drawback since the concerned Government or Public Officer is empowered to take
undue advantage of the same and us its power and force to suppress, restrain the claim made
by the plaintiff. ‘

Another significant failure of the Provision is the non-insertion of a proviso mandating the
Government or Public Official to reply to the said letter in a specific time limit and the
recourse that could be adopted by the plaintiff on occurrence of the failure on part of the
Government or Public Official.

The said provision makes it explicitly clear that the Notice to be served under Section 80 (1)
shall not be valid if it is not established that the act done by the Public Official is in
furtherance of his/her Official Capacity, however, the Act fails to state the requirement or
exceptions, as the case may be, for the Government, since it may so happen, that an act of the
Government, though against the Aggrieved Party could be undertaken in the Interest of
National Security.

However, the provision has been enacted in a coherent manner which provides ample
opportunity to the Judiciary to interpret the same in order to uphold the Principle of Natural
Justice. This has enabled the Judiciary to interpret various facets of legal principles in the said
provision pertaining to writ, appeal, revision et cetera.

Thus, to put it in a nutshell, In a democratic country based on socialistic and representative

pattern, it is essential to have a system providing a machinery to institute a suit by or against
the Government official, however, the same should take into consideration the ground
realities of bureaucracy and corruption while formulating the machinery for the same.
BIBLIOGRAPHY:

Statute:

 Code of Civil Procedure, 1908, (Act No. 5 of 1908) (India)

 INDIA CONST. Art. 300 & Art. 77.

BOOK:

 Eight Edition, C.K. Takwani, Civil Procedure with Limitation Act, 1963.

Articles:

 Praveenkumar. M, Mrs.V.Udayavani, Suits Brought By Or Against Government

Or Public Officers Under Civil Procedure Code, 1908, International Journal of
Pure and Applied Mathematics Volume 120 No. 5 2018, 2557-2569,
http://www.acadpubl.eu/hub/

Reports:

 Law Commission’s Fourteenth Report, pp. 475-476, http://lawcommissionofindia.nic.in/1-50/index1-

50.htm.
 Law Commission’s Twenty-seventh Report, pp. 21-22. http://lawcommissionofindia.nic.in/1-
50/Report27.pdf.