SYMBIOSIS LAW SCHOOL, PUNE

1ST INTERNAL ASSESSMENT

SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS IN

THEIR OFFICIAL CAPACITY

CODE OF CIVIL PROCEDURE AND LIMITATION ACT II

Submitted by:-

Name- Rohan Lodge

Course- B.A. LLB (Hons.)

Division- E

Semester- IV Word Count (excluding Citations)

PRN Number- 19010125439 2818

TABLE OF CONTENTS
 Code of Civil Procedure and Limitation Act II – Internal I

ABSTRACT..............................................................................................................................3

INTRODUCTION....................................................................................................................4

THE JURISPRUDENTIAL ANALYSIS OF THE RELEVANT STATUTORY

PROVISIONS...........................................................................................................................4

SECTION 79.............................................................................................................................4
SECTION 80(I).........................................................................................................................5
SECTION 80(2) AND 80(3).......................................................................................................6
SECTION 81 AND 82................................................................................................................7
ORDER 27...............................................................................................................................7

CRITICAL ANALYSIS...........................................................................................................8

THE OBJECTIVE OF THE SECTION...........................................................................................8

THE DISCONNECT BETWEEN THE OBJECT AND ITS APPLICATION..........................................8

RECOMMENDATIONS AND CONCLUSION.................................................................10

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ABSTRACT

Section 80 of the Code of Civil Procedure is a provision that was introduced before India’s
independence and continues to carry elements of the superiority of the State over its subjects.
Albeit introduced with the intent to minimize the frivolous litigation that is filed within the
courts of India, it rarely works towards solving the problem. Instead, the section is abused by
government officers and officials who use it to unreasonably postpone the submission of their
written statements while making no efforts to settle the matter outside of Court as was
intended by the legislators. This paper seeks to scrutinize the provisions that deal with suits
by or against Government/Public Officers and analyse them in light of their practical
application with due regard to the recommendations made by the Law Commission of India.
On these grounds, recommendations shall be put forth by the author that seek to solve the
problems present within the existing framework.

Keywords- Code of Civil Procedure, Section 80, Legal Notice, Civil Suits, Government
Officials, Public Officers.

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INTRODUCTION

The Code of Civil Procedure (hereinafter CPC) governs most, if not all, civil suits that are
tried in the territory of India1, but its uniform application does not directly translate into a
uniform manner with which it may dispose all its cases.

Of relevance to this paper is the difference in the procedure followed in a civil suit between a
private individual and a Government officer. The procedure prescribed under the CPC to
submit a plaint is substantially different in these instances when compared to the procedure
that would be followed in an ordinary suit.

This paper seeks to scrutinize the statutory interpretation and jurisprudence of relevant
sections when filing a suit against a public officer in their official capacity. After such
examination, the provisions shall be critically analysed, and on the basis of such analysis,
recommendations shall be made while evaluating whether the provision functions well, or
requires amendment/abolition.

THE JURISPRUDENTIAL ANALYSIS OF THE RELEVANT STATUTORY

PROVISIONS

At the outset, it is worth noting that the CPC is still a procedural law. Nothing contained
within these provisions affects the substantive rights and liabilities of either the Government
officers or private individuals, rather it merely ability to enforce the same 2.

The right of an individual to sue the Government, and the right of the Government to sue a
private individual as guaranteed under the Constitution remains unimpaired 3. The procedure
for the same is prescribed under Section 79-82 read with Order XXVII of the CPC.

Let us briefly examine the relevant provisions and the jurisprudence behind the same.

SECTION 79
The provisions of this section4 re-affirm the right granted by Article 300 (to sue the
Government and vice-versa). As discussed earlier, this provision only outlines the procedure
1
Code of Civil Procedure, 1908, Section 1, No. 5, Acts of Parliament, 1908.
2
LAW COMMISSION OF INDIA, TWENTY SEVENTH REPORT (THE CODE OF CIVIL PROCEDURE, 1908) (1964).
3
INDIA CONST. art. 300.
4
Code of Civil Procedure, 1908, Section 79, No. 5, Acts of Parliament, 1908.

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to be followed once a cause of action under Art. 300 of the Constitution has arisen 5. It lays
down the appropriate title of suits against the Government and their officials.

However, it is worth noting that such suits may only be filed in the Court within whose
territorial jurisdiction the cause of action has arisen, and the general terms of the CPC that
refer to “dwell”, “reside” or “carry on business” do not apply to the Government6.

The exception to this is the Government-run Indian Railways where the Supreme Court has
noted in Union of India & anr. v. Ladu Lal Jain7 that the administration of railways may be
considered an “act of carrying on business” and as such, they may be sued at the Court within
whose territorial jurisdiction the head office is placed.

SECTION 80(I)
In every legal proceeding, an essential step is the serving of legal notice to the other party
which informs them of the case that is being made against them 8. Ordinarily, the legal notice
is served after the plaint is served to the Court; however this is not the case in Suits against
government officials.

Section 80(i)9 mandates the serving of a notice to the government officer/official before the
institution of the suit. No suit may be put forth to the Court until a period of two months has
passed after the delivery of such notice. A suit in contravention of the same shall be rejected
under Order 7, Rule 11.

It also specifies who the notice must be made to in each instance. The notice is to be served
to:-

 the Secretary to the Government in cases against the Central Government, or

 the State Government or District Collector in cases against State Governments, or
 the General Manager of the Railways in cases against the Indian Railways, or
 the office of the public officer, so long as the suit concerns an action (from which the
cause of action arises) that is purported to be in the official capacity of such officer10.

However, such notices must only be given only after the cause of action has arisen11.
5
Jehangir Cursetji v. Secretary of State for India, (1903) 27 Bom 189.
6
Dominion of India v. RCKC Nath & Co., 1949 SCC OnLine Cal 134.
7
Union of India & anr. v. Ladu Lal Jain, 1963 AIR 1681.
8
Jitu Patnaik v. Sanatan Mohakud & ors,, (2012) 5 SCC 194.
9
Code of Civil Procedure, 1908, Section 80(1), No. 5, Acts of Parliament, 1908.
10
State of Maharashtra v. Chander Kant, (1977) 1 SCC 257.
11
State of Punjab v. Tripta Rani, AIR 1990 P&H 252.
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The notice itself must contain the relevant contact information of the plaintiff, the bundle of
facts that comprise the cause of action, the time that the cause of action arose and the prayer
of the plaintiff. The Supreme Court has highlighted in Sankar Mukherjee v. Union of India12
that the notice must convey to the defendant all the information they require in order to
“consider” the plaintiff’s claim.

The intention behind this is to reduce litigation, and to allow for opportunity to resolve a
dispute outside of Court as shall be further discussed in the Critical Analysis section of this
paper.

It is worth noting that the section only limits the institution of suits. Applications to the
Supreme Court13 and High Court14 for the enforcement of fundamental rights are considered
entirely different proceedings and may still be filed 15. As first put forth in Lal Chand v.
Union of India & anr.16, the notice may be waived as well if the government chooses to do
so17, with due regard to the relevant facts of the case18.

Section 80(i) does not extend to all instrumentalities of State as understood by the
Constitution19, such as statutory authorities. The understanding of “Government” bodies
under is limited and only extends to the bodies recognized under the provisions of 80(i) such
as the State and Central Government.

SECTION 80(2) AND 80(3)

Both of these sections were added by the amendment to the CPC in 1976. The objective of
the insertion of 80(2) in particular, is to allow for the overriding of the requirement to submit
a notice in cases of urgency 20. It allows, with the permission of the Court, for a suit
demanding urgent or immediate relief to be instituted within the Court without serving the
notice and waiting two months. However, relief may only be granted by the Court in these
instances after giving the Government officer a reasonable opportunity to show cause.

12
Sankar Mukherjee v. Union of India, AIR 1990 SC 532.
13
INDIA CONST. art. 32.
14
INDIA CONST. art. 226.
15
Shiv Dutt v. State of Himachal Pradesh, AIR 1953 HP 95.
16
Lal Chand v. Union of India & anr., (2009) 15 SCC 769.
17
Dhina Singh v. Union of India, AIR 1958 SC 274.
18
Commissioner of Taxes v. Golak Nath Kakati & anr., AIR 1979 Gau 10.
19
INDIA CONST. art 12
20
Prakash Industries Ltd. v. Maitri Shukla, AIR 1998 Ori 45.
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Further, if the Court is convinced after hearing the two parties that the relief required is not
immediate, S. 80(1) comes into effect once again21.

Section 80(3)22 prevents the vitiation of the notice and dismissal of the suit on the grounds
that the notice submitted on the basis of “any error or defect” that is not substantial. So long
as the particulars of the plaintiff, the relief claimed and the cause of action has been
substantiated, and the delivery was done appropriately, the notice may not be vitiated on
grounds of defect/error. This is done in the interest of justice as re-affirmed by the Report of
the Joint Committee on the Amendment to the CPC23.

SECTION 81 AND 82
In instances where the public officer is absent from the proceedings for a valid reason in the
eyes of the Court, Section 81 exempts a public officer from any outcome of the suit that may
result in the arrest of such officer (so long as the suit is covered under 79).

Section 82 prevents an execution decree from being issued against government or public
officers unless such decree has not been satisfied for a period of 3 months after the decree
was issued.

ORDER 27
Order 27 of the CPC supplements the sections that we have discussed above:-

 Rule 1 requires the plaint to be verified by an individual appointed by the Government.

 Rule 2 recognizes the individuals authorised to act on behalf of the Government. It has
been read into this provision that the Government must be given reasonable time to
prepare their written statement24.
 Rule 3 reinforces Section 79 of the CPC.
 Rule 4 extends the agency of the Government for the processes related to the trial to the
individual who is pleading on behalf of the Government.
 Rule 5 prescribes procedure for the fixing the day for appearance on behalf of the
Government.

21
Code of Civil Procedure, 1908, Proviso to Section 80(2), No. 5, Acts of Parliament, 1908.
22
Code of Civil Procedure, 1908, Proviso to Section 80(3), No. 5, Acts of Parliament, 1908.
23
PARLIAMENTARY COMMITTEE REPORTS, REPORT OF THE JOINT COMMITTEE ON THE CODE OF CIVIL
PROCEDURE (AMENDMENT) BILL, 1974 12 (1976).
24
Dy. Collector, Northern Sub-division v. Comunidade of Bambolim, (1995) 5 SCC 333.
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 Rule 6 empowers the Court to ask a government officer to attend who shall be able to
answer questions posed to the Government during the proceedings of the Suit.
 Rule 7 allows the Court to extend the time a public officer may take to make a reference
to the Government before answering a plaint; and lastly,
 Rule 8 lays down specifics of the procedure to be followed in such cases.

CRITICAL ANALYSIS

THE OBJECTIVE OF THE SECTION

The rationale behind the extended procedure discussed above is prima facie legitimate. The
general powers, duties and obligations of a government officer differs largely from an
ordinary civilian, and in the due process of carrying out their duties as a government officer,
it often happens that the rights of another individual is curbed during the operation of law; for
instance, an accounting failure by a taxation officer. This gives impetus to private individuals
to file civil suits for harassment and the like against government officers, irrespective of the
legitimacy of the officer’s actions or the rationale behind the petitioner’s claims. Therefore,
to prevent the inhibition of public policy, the provision has been enacted25.

The problem it seeks to solve, as highlighted by the Law Commission 26 as well, is the
unlimited liability that comes with a public office, where countless transactions are dealt
with. The failure in even ten out of a thousand such transactions would lead to an
insurmountable pile of litigation for an individual person. By providing for time that allows
for out of court settlement, this is circumvented.

As a result, the CPC attempts to inhibit such gratuitous litigation with such provisions to
protect public officers, for instance lengthening the process to file such civil suits by
requiring the plaintiff to file notices. The intention behind such provisions are to reduce how
often such suits are filed, while also providing an opportunity to the parties to settle the
matter outside of Court in an attempt to avoid frivolous litigation27.

THE DISCONNECT BETWEEN THE OBJECT AND ITS APPLICATION

25
POLLOCK MULLA, THE CODE OF CIVIL PROCEDURE 491 (18th edition, 2013).
26
LAW COMMISSION OF INDIA, FIFTY-SIXTH REPORT ON STATUTORY PROVISIONS AS TO NOTICE OF SUIT
OTHER THAN SECTION 80, CIVIL PROCEDURE CODE ¶20 (1978).
27
State of Punjab v. Geeta Iron & Brass Works Ltd., (1978) 1 SCC 68.
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Despite such positive intentions, however, it often appears the notice period is more
cumbersome then effective.

The reality of the situation is that there are often instances where there is no actual reason for
the notice period to go on for as long as it does. The officers have no obligation to respond to
the notice at the earliest, and as such, they allow the notice to extend for the entire period of
two months, until such a point that they have no alternative but to respond to it. In this way,
the legitimate claim of a civilian is subverted and the officers abuse a technicality in the
provision to temporarily immunize themselves from the immediate consequence of their
actions, abusing a period reserved for settlement28.

Alongside the aforementioned issues that cumulate in the notices effectively going
unanswered, there is always the underlying potential for abuse. Government officials have a
tendency to delay their written statements that extend up to a year, resulting in an inordinate
amount of delay to the proceedings.

Alongside all of this, is the fact that there is no real equivalent to the law present in India in
any other democracy. The problem such a provision causes is the distinction it makes
between the people, and the power held by the State. Such differentiation is neither beneficial
nor healthy for a democracy29, given the sheer divide it creates between the creators of policy
(and their agents) and the people. The more this differentiation is coloured in, the harder it
will be to attain the objective of any democracy i.e. to make the government accountable to
its people30. The provision was initially designed with the colonization of India kept in mind,
making it clear that the object was to empower the Government and differentiate it from the
citizen, a distinction entirely unnecessary in modern, democratic India31.

With all of this in mind, it is clear that the objectives sought to be met by the Section are not
even close to being met in practical circumstances. While it allows for settlement in one
instance out of a hundred, the potential harm that arises out of the constant abuse of this
provision by government official does far more harm than its projected theoretical good.

28
LAW COMMISSION OF INDIA, 14TH REPORT OF THE LAW COMMISSION ON THE REFORM OF JUDICIAL
ADMINISTRATION 475-476 (1958).
29
T. R. S. Allan, Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism, 44 CAM LAW
J. 111, 114 (1985).
30
Fred Cutler, Government Responsibility and Electoral Accountability in Federations, 34 PUBLIUS 19 (2004).
31
LAW COMMISSION OF INDIA, TWENTY SEVENTH REPORT (THE CODE OF CIVIL PROCEDURE, 1908) 22, (1964).
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Noting all of these concerns, the Law Commission has recommended the removal of the
provision as early as 195832. The author of this paper agrees with the sentiment, and would
like the put forth his recommendations as well on the grounds mentioned in this analysis.

RECOMMENDATIONS AND CONCLUSION

The obvious recommendation is an extrapolation of what has been provided for in the Law
Commission Reports i.e. the removal of Section 80(i) as a provision in the CPC, due to the
divide it brings between the citizens of the Country and the State. However, due to the refusal
of the legislature to reconsider the provision, supplementary recommendations may be made
as well.

On account of the glaring problems with the provision marked above; the following
recommendations are put forth by the author of this paper:-

 Firstly, amendments may be introduced that place a higher degree of accountability on

the officer who receives legal notices under 80(i). This would be achieved by the
insertion of a provision in the CPC that allows for an ex-parte decree being passed in
situations where immediate relief is required and the government officer fails to respond
to the notice/file his written statement in a reasonable amount of time.
Alongside this, the unnecessary delay that bars the Court from passing an execution
decree must be removed as well.
 Secondly, there need to be more provisions such as Section 80(2) that allow for a victim-
based approach to be taken up by the Court. It is important to take cognizance of
situations where the plaintiff requires an immediate remedy, as the two-month period
mandated can result in a situation where the harm caused cannot be undone.
An example of this would be a sub-section added to Section 80 that allows for an
escalating amount of damages that would be paid out to the plaintiff on the basis of
unjustifiable delays that are caused by Public Officers.
 Thirdly, it is clear that the fundamental objective is to reduce litigation and allow for
settlement. If this is the problem that the provision seeks to solve, it would be better
suited to create an alternative mechanism that specifically analyses such instances and
works towards settlement and alternative dispute resolution before the matter is brought
before the Courts of the country. An independent mechanism that is equally invested in
32
Supra note 28.
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minimizing litigation and holding government personnel responsible would be a financial

investment that would be difficult to implement, but would generally see more success in
reducing litigation and allowing for justiciable settlements than the present notice system.
 Lastly, it is urged that more clarity is provided under Section 80(2) as to the instances in
which the Court may excuse the notice period. Currently, there is no real guidelines as to
when it is permissible other than when the “Court is satisfied” that immediate relief is
required. A clear standard in favour of the victims that a plaintiff is required to meet
would help clarify the position of the Court, and help distribute equitable justice to those
who require it most.

While Suits by Government officers are not problematic, it is clear that there is an immediate
disconnect between the intentions that the provision seeks to achieve (in suits against
government officers) and the actual ground reality.

Given this disconnect, the parliament must seriously reconsider the efficacy of Section 80(i)
and whether it is a provision that lowers the amount of litigation present in the country, or
whether it is a provision that actively contributes to the delay of justice that has been a
problem in India’s judicial institutions since its inception33.

33
Robert Moog, Delays in the Indian Courts: Why the Judges Don't Take Control, 16 JUS. SYS. J. 19, 20-23
(1992).
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