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SYMBIOSIS LAW SCHOOL PUNE

CONSTITUENT OF SYMBIOSIS INTERNATIONAL UNIVERSITY

CODE OF CIVIL PROCEDURE – INTERNAL ASSESSMENT

TOPIC ANALYSIS

“SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY”

UNDER THE GUIDANCE OF – SUBMITTED BY –

PROF. NITIN KUMAR SACHIN K. AGRAWAL


Faculty of Law IV Year B.B.A LL.B Division- E
Code of Civil Procedure 14010126474
Symbiosis Law School Pune sachin.agrawal2423@gmail.com
TABLE OF CONTENTS

ABSTRACT ......................................................................................................... 1

ANALYSIS .......................................................................................................... 1

PROVISIONS UNDER ORDER 27 .................................................................. 3

CONCLUSION.................................................................................................... 4

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ABSTRACT

Section 79 to 82 and Order 27 of the Civil Procedure Code, 1908 lay down procedure where
suits are brought by or against the Government or Public officers. The provisions provide for
the procedure only not about rights and liabilities. Substantive right has to be find accordance
with the provisions of the Constitution1. These provisions gives no cause of action but only
declares the mode of procedure when a cause of action has arisen 2. Under Civil Procedure
Code, 1908 Section deal with provisions of a substantive nature and lays down general
principles and Orders deals with procedure, manner and mode in which general principle can
be exercised. Similarly, Section 79 to 82 provides for the general principles and Order 27
prescribe the procedure in which general rules provided under Section 79 to 82 can be
exercised.

ANALYSIS

Section 79 of the Code provides that in a suit by or against the Government the authority to be
named as Plaintiff & Defendant in case of (i) Central Government Union of India & (ii) State
Government the State. Section 79 being a procedural provision, substantial compliance with
the requirements thereof is Sufficient3. The Supreme Court declared that procedural law clearly
specifies the situation in which Government is required to be made a party and the law to this
regard is settled that if the Government is not made a party, the litigation cannot be proceeded.

In Chief Conservator of Forests, Government of A.P. v. Collector4, Supreme Court has


observed that the requirement of provision contained in Section 79 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, the authority to be named as plaintiff or defendant, as the
case may be, shall be:-

1. in the case of a suit by or against the Central Government, the Union of India, and

1
Sawai Singhai Nirmal Chand v. Union of India, AIR 1966 SC 1068 at pp. 1071-72
2
Jehangir v. Secretary of State, (1903) ILR 27 Bom 189
3
Yogesh Chandra Das v. Chief Secretary of Assam, AIR 1990 Gau 74
4
AIR 2003 SC 1805

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2. in the case of a suit by or against a State Government, the State.

Under Section 80 of the CPC, there has been no requirements led down as to who can file a
notice. Section 80 of the CPC provides for sending a notice to the government or a public
officer if one wants to institute a suit against the government or against a public officer in
respect of any act purporting to be done by such public officer in his official capacity until the
expiration of two months. The object of the notice is to give Secretary of State or the public
officer an opportunity to reconsider his legal position and to make amends or afford restitution
without recourse to a court of law. It can be filed by anyone.

In the case of Calcutta Municipal v. Sibamoy Chakraborty5, the Court clarified the difference
between filing a notice against Government and against a public official. In respect of the
Government, institution of all suits of all types, has been barred except after service of notice,
as far as a public officer is concerned Institution of only such suits against him, except after
service, has been barred which are in respect of any act purporting to be done by such public
officer in his official capacity. In other words, what section 80 CPC provides is that one can
institute a suit against a public officer without serving a notice upon him if the suit is not in
respect of any act purporting to be done by such public officer in his official capacity, but as
far as the Government is concerned, no such exception is made and suits of all types, of
whatever nature are barred except when instituted after service of notice.

In the case of State of A.P. v. Gundugola Venkata6, it was held that the essentials of filing a
notice is the name, description and address of the person filing a notice should be present along
with a statement of cause of action and the relief he claims. You should leave it at the Office
of the concerned authority and the notice has to be in writing. No extra stamp duty is required.

Section 81 provides that where a suit is instituted against a public official for an act(s) purported
to be done in his official capacity, he shall not be arrested and his property shall not be attached
unless the same is in the execution of a decree.

Section 82 provides that where a decree is passed against the Government or a public official,
the same shall not be executed except where it remains unsatisfied for a period of 3 months
from the date of passing of the decree.

5
(2000) 3 CALLT 303 HC
6
AIR 1965 SC 11

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PROVISIONS UNDER ORDER 27

Rule 1 provides that in case of a suit by or against the government, the plaint or written
statement shall be signed by any person appointed by the government in this regard by way of
a general or special order. The plaint or written statement shall be verified by a person
appointed by the government and who is aware of the facts of the case7.

Rule 2 provides that any person who is ex officio entitled to represent the government in
judicial proceedings or is authorized by the government in this regard shall be the recognized
agent who shall make appearances, applications and do acts on behalf of the government.

The government pleader shall be the agent of the government for receiving all court processes8.
(Rule 4)

In fixing the date for the hearing, the court must have due to regard to the communications
made to the government, issue of instructions to the government pleader to appear, etc. (Rule
5) Such time limit may be extended by the court but not beyond 2 months in aggregate9.

An extension may also be granted where a public official is a defendant and he takes leave
from the court to make a reference to the government before he answers the allegations in the
plaint. (Rule 7). This is also because, in every suit against a public officer, the government is
deemed to have been joined as a party. (Rule 5-A)

Where the government decides to take defense for acts done by a public official, the
government pleader after having been authorized in this regard shall make an application to the
court and the court shall cause his name to be entered into the register of civil suits. (Rule 8)
Where no such application is made by the government pleader on or before the date of hearing
as fixed by the notice, the proceedings shall be deemed to be as between private parties.
However, the public official in such case cannot be arrested or his property cannot be attached,
except where it is for execution of a decree.

7
State of Rajasthan v. Jaipur Hosiery Mills Pvt Ltd., AIR 1997 Raj 10
8
Mundrika Prasad v. State of Bihar, AIR 1979 SC 1871
9
State v. Bimal Kumar, AIR 1979 Cal 391

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The court also has the duty to assist the parties in arriving at a settlement where it is of the
opinion that such settlement is possible. It may also grant an adjournment for such purpose.
(Rule 5-B)

The court may even direct the attendance of any person who may be able to answer material
questions as regards the matter on behalf of the government where such person doesn’t appear
in court without the government pleader. (Rule 6) No security is required to be furnished by
the government or the public official10.

Rule 8A provides that no security as mentioned in rule 5 and 6 of order XLI i.e. for appeal
provided is required in a case against Government or public officer sued in respect of any act
alleged to be done by him in his official capacity.

Rule 8B provides for the definition of Government and Government pleader. In relation to
central Government it means any pleader as that Government may appoint for the purpose of
this order. Further Government pleader mean as defined under Section 2(7) of CPC, 1908.

CONCLUSION

After examining the provisions as mentioned we have understand that for any suit against a
Government first of all it is necessary that party should be name according to section 79 of
CPC. Further to institutive a suit against Government or public officer acting in purporting to
his official duty it is mandatory to give prior notice of 2 month. The only exception to this rule
is provided by addition of 80(2) after the amendment of 1976. The amendment is helping hand
so that justice can be done as early as possible. After concluding the above topics, this Article
attempts to elucidate about the various aspects of these types of suits. It speaks about whether
rights granted under this can be waived, the forms in which notices can be served and also the
modes in which these have to be served. Moreover, Article has provided us about procedure
given under rule 27 and other privileges given to parties i.e. under Section 81 & 82 of the Code.

As far as extending legal aid to such government officials to concerned the State Government
may prepare a panel of lawyers to defend the government officials in contempt matters but it
cannot include in that panel the Government Advocates, Additional Government Advocates,
Deputy Government Advocates, Assistant Government Advocates public Prosecutors,

10
State Of Punjab vs Amar Chand Walia, AIR 1980 P&H 318

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Additional/Assistant Public Prosecutors Chief Standing Counsel, Additional Chief Standing


Counsel, Standing Counsel or any other counsel who is continuing under engagement for the
State.

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