TABLE OF CONTENTS

Abstract ...................................................................................................................................... 2

Introduction ................................................................................................................................ 2

Satutory Provisions Under CPC- Rationale & Interpretation .................................................... 2

Applicability Issues & Law Commission Recommendations ................................................... 5

Conclusion ................................................................................................................................. 5

References .................................................................................................................................. 6
 ABSTRACT
This Article analyses the provision of Code of Civil Procedure, 1908(hereinafter
referred to as CPC) with respect to the Suit by or against Government or public official
in their official capacity. In its first part the article recognizes the rationale behind
certain exemption to government. Keeping this rationale in mind the second part
evaluates the statutory provisions of CPC on this ground. The third part looks at the
issues associated with it in its actual application in the court of law and Law
Commission Recommendation spanning from 1958 on this regard. This article
concludes by providing a way forward.

INTRODUCTION
Indian Courts are plagued with huge pendency problems and this is further exacerbated by the
fact that government is the biggest litigator in India. This is cause for concern as government
litigation is financed from national resources.1 Hence, the legislative policy is aimed at ensuring
that suits involving government are resolved outside the court if possible.2 This approach is
underlying the provisions in CPC which deal with suits by or against the government or public
officers. Additionally, it is observed that CPC also adopts a balancing approach; thus, one hand
the provisions are aimed at ensuring that suits are resolved at the earliest at the same time
keeping in mind the principle of natural justice they seek to ensure that the other party is not
put at an undue advantage because of these provisions.

In this background, this article looks at the substantive and procedural provisions of CPC, the
approach adopted by the court while interpreting these provisions and the problems associated
with the same with reference to the Law Commission reports.

However, before delving into the same it becomes imperative to give a brief background
regarding the liability of government and public officers. Under the principle of “king can do
no harm” the government can sue and be sued only under the colour of legal title and not under
sovereign authority. Similarly, public officials cannot be sued in their personal capacity; they
can only be vicariously made liable for any act done in course of their official duties.3

STATUTORY PROVISIONS UNDER CPC- RATIONALE & INTERPRETATION

Under CPC Part IV deals with Suits in particular case. Section 79- 83 read with Order 27 deal
with Suits by or against the government or public official acting in their official capacity.

1
C.K. Takwani, Civil Procedure Code with Limitation Act, 1963, Eastern Book Company
2
Bihari Chowdhary vs State of Bihar, AIR 1984 SC 1043
3
MP Jain, Administrative Law, Lexis Nexis
Section 79 simply provides in whose name the suit is to be institute. It states that in suit against
the Government, the authority to be impleaded as the plaintiff or the defendant would be Union
of India in case of Central Government and in case of state government would be the State.4
This must be read with Rule 3 of Order 27 which deals with the same. Section 80 is one of the
most important Sections in this chapter. Although the short title of this section is notice; this
section serves another purpose as well. It also clarifies on whom this notice is to be served.
Accordingly, no suite can be instituted against the government or public official unless two-
month notice period has been given to them.5 The rationale behind providing notice to the
government officers under this section is to afford them an opportunity to reconsider the legal
position and make amends if so without litigation.6 However, at the same time the Code makes
due provision to ensure that the ends of justice are met and thus Section 80(2) states that the
court after hearing the Government or Public officer can grant an urgent relief to the plaintiff
if it feels that sufficient cause exists to grant the same. In continuation with this balancing
approach; Section 80(3) states that if the notice contains the name &address of the plaintiff,
cause of action, relief claimed & the notice has been delivered to the appropriate authority then
the same cannot be dismissed on mere technical grounds.7 The Courts have also adopted a
purposive interpretation and had held that although this mandatory however that does not mean
that it should be construed in a pedantic manner.8 The case of Ghanshyam Das vs Dominion of
India9 is illustrative of this approach; in this case a notice was issued under Section 80 by the
plaintiff’s father but his claim was denied. He died before he could institute a suit against the
government. His sons filed the suit but did not institute a fresh notice to the Government. The
Supreme Court held that no fresh notice was required. Furthermore, if Government is only one
of the party, then the non- adherence to this Section only renders the suit with respect to the
government bad and the suit with respect to the rest of the parties stand. Another important rule
with this regard is that notice period can be excluded for commuting the period of limitation,10
such an exclusion is also aimed at ensuring that the other party is not unduly advantaged.
Additionally, the same can be waived by the Government or the official.11

4
Section 79, Code of Civil Procedure, (Act V of 1908)
5
Section 80, Code of Civil Procedure, (Act V of 1908)
6
MP Jain, Code of Civil Procedure, Lexis Nexis Butterworths Wadhwa
7
Supra note 4
8
Raghunath Das vs Union of India, AIR 1969 SC 674
9
Ghanshyam Das vs Dominion of India, AIR 1984 SC 1004
10
Sawai Singhai N. Chand vs. Union of India, AIR 1966 SC 1068
11
Bishandayal v. State of Orissa, AIR 2002 SC 544
Section 81 provides the defendant public official exemption from arrests and personal
appearance. In terms of this Section if the court is satisfied that if the defendant absents himself
from his duty then public service would be adversely affected then then the public servant can
be exempted from personal appearance. Furthermore, sub-section also provides him protection
from arrest and his property protection from attachment until the decree is pronounced. 12

Section 82 deals with the execution of the decree. Accordingly, it states that decree must not
be executed against Government or a Public Official unless it remains unsatisfied for two
months.13

These provisions are supplemented by the provision of Order 27. The provisions of this order
provide procedural guidance in suits against the government. Accordingly, Order 1 states that
the Government’s pleadings must be signed by a person appointed by a special order to do so
and they must also be verified by any person who the government may appoint and who is
acquainted with the facts of the case.14 Hence, a two-level scrutiny is envisaged under the
provision of the code to ensure that a wrong position which is prejudicial to the greater public
interest is not adopted.

Rule 2 deals designates person authorized to act on behalf of the government in respect of any
judicial proceeding as the recognized agents of the government.15 Rule 4 is another clarifying
procedure on one hand, it states that Government pleader are the deemed to be agent of the
Government for the purposes of receiving summons.16 This simplifies the procedure for the
other party. Rule 5 is also an exemplary illustration of the balancing approach adopted by the
government and hence on one hand the rule provides for reasonable time to the Government
seek instruction and accordingly act but at the same time it provides for a time limit for 2
months to ensure that this is not misused and causes hardship to the other party. Rule 5A is
based on the principle of vicarious liability and thus in a suit for damages against public officer
the Government can be joined. Rule 5B is also added to achieve the underlying objective of
this statue and thus imposes a duty on the state to assists the parties to such a suite in reaching
a settlement. In pursuance of the same the court can adjourn the proceeding at any juncture to
enable the parties to do the same.

12
Section 81, Code of Civil Procedure, (Act V of 1908)
13
Section 82, Code of Civil Procedure, (Act V of 1908)
14
Rule 1, Order XXVII, Code of Civil Procedure, (Act V of 1908)
15
Rule 2, Order XXVII, Code of Civil Procedure, (Act V of 1908)
16
Rule 4, Order XXVII, Code of Civil Procedure, (Act V of 1908)
Rule 7 and 8 provide further exemptions to the government; Section 7 provides for extension
of time so that the Government officer and pleader can make reference to the government and
seek instruction in this regard. Section 8A does away with the requirement of providing security
by the Government in case of appeals and stays.

APPLICABILITY ISSUES & LAW COMMISSION RECOMMENDATIONS

The Law Commission has discussed these provision in three of its reports. The first time that
the Commission touched upon this issue was in its 14th Report in the year 1958. In this report
the Commission recommended that Section 80 of CPC must be repealed. The Commission was
of the view that this Section lead to undue hardship and injustice. At that juncture Section 80(2)
was not in existence (this Section was added by the Amendment Act 1976), hence the
Commission relied on the injustice caused to the plaintiff if an urgent relief is required. The
Commission also looked at the rationale behind this provision and pointed out that this
provision was not utilized by the Government effectively. The Government do not reply to the
notice and rather use this provision as a technical ground to argue dismissal of the suit, hence
abusing the same.17 In its 27th Report in 1964 it reiterated these suggestions.18 In this
background the Joint Committee in 1976 considered these recommendations of the Law
Commission however, the same were rejected and it was recommended this section must be
retained in the greater interest of the public.19 However, recognizing the injustice rendered by
the application certain provisions were inserted to CPC to balance these conflicting interests
(namely Section 80 (3), 80(2), Rule 5A, 5B & 8A). Finally, in the year 1984 in its 100th Report
the Commission reviewed these provisions again. The Commission took stock of the
amendments made in the year 1976 and stated they did no go a long way towards reducing the
hardship caused to the plaintiff and only resulted in increasing the cost and reiterated the
recommendation, that this provision must be done away with.20

CONCLUSION
On basis of this brief analysis it can be concluded that although the rationale behind these
provisions is noble; however, in application is characterized by ambiguities. The Government
takes these provision for granted and as a part of its litigation strategy adopts a hyper-technical
approach to its interpretation. This against the basic characteristic of procedural law which is

17
Pg 475- 476, 14th Report, Law Commission of India
18
Para 50, 27th Report, Law Commission of India
19
Report of Joint Committee, Gazette of India, dt- 1.4.1976, Pt- II
20
Chapter 2, 100th Report, Law Commission of India
supposed to be a hand maiden to justice. However, it is observed that the provisions in itself
are not the cause of this anomaly and hence the drastic step of repealing the same is
incongruous. It is suggested that measures must be adopted that the Government actually uses
this provision to resolve the dispute and in furtherance of the same it is recommended that a
reply to a notice under Section 80 must be made mandatory. Furthermore, the government must
set up a litigation officer who can handle such notices and use the alternative dispute resolution
methods to resolve the same. Additionally, an incentive-based model can be adopted which
gives an impetus to the Government and its officers to settle such disputes expeditiously.

REFERENCES
1. Books
 C.K. Takwani, Civil Procedure Code with Limitation Act, 1963, Eastern Book
Company
 Vinay Kumar Gupta, Mulla’s Code of Civil Procedure, Lexis Nexis
Butterworths Wadhwa
 MP Jain, Code of Civil Procedure, Lexis Nexis Butterworths Wadhwa
 MP Jain, Administrative Law, Lexis Nexis
2. Websites
 IndianKanoon.org
 Lawctopus.com
 Academia.edu
 iPleaders.com
3. Databases
 SCC
 Manupatra
 SSRN