CIVIL PROCEDURE CODE - II

I Internal

B.A./BB.A. LL.B. Semester IV

“SUITS BY OR AGAINST THE GOVERNMENT”

Sachika Deepaksingh Thakur

18010126214

Divison -‘C’
ABSTRACT

Sections 79 to 82 and Order 27 of the 1908 Code of Civil Procedure provide for proceedings
where suits are brought by or against the government or public officers. The provisions lay down
that the procedure is not just about rights and liabilities. Substantive right has to be sought in
compliance with the constitutional provisions.1 These provisions gives no cause of action but
only declares the mode of procedure when a cause of action has arisen.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.

The Supreme Court, in the landmark case of Bihari Chowdhary v. State of Bihar[iv] has stated
that “The object of these sections is the advancement of justice and the securing of public good
by avoidance of unnecessary litigation.” This project analyses the position of the section as it
stands today and its applicability.

Keywords - civil procedure code, constitution, order, government, public

ANALYSIS

Name of party in Suit:-

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 govt.- Union of India & (ii) State
Government -the State.

Section 79 being a procedural provision, substantial compliance with the requirements thereof is
Sufficient.2 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. Collector, Supreme Court has observed
that the requirement of provision contained in Section 79 CPC is not merely a procedural

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

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

NOTICE UNDER SECTION 80(1)

AMENDMENT 

The amendment to this section had made some changes in 1976. By the amending act of 1976
section 80 has been extensively amended. Main changes consist of in the insertion of subsection
(2) and (3) which are totally new. Sub-section (2) has been inserted to permit the institution of a
suit without notice but subject to the important restriction prohibiting the grant of ‘relief in the
suit whether interim or otherwise’ except after giving a reasonable opportunity of showing cause
in respect of the relief prayed for in the suit. Subsection (3) prohibits dismissal of a suit where
the notice, has been given but suffers from certain technical deficiencies.

NATURE AND APPLICABILITY

Section 80 enumerates two types of cases i) suits against the government, and ii) suits against
public officers in respect of acts done or purporting to be done by such public officers in their
official capacity. Regarding the former, the notice is required to be given in all cases. Regarding
the latter, notice is necessary only when the suit is in respect of any act “Purporting to be done”
by the public officer in the discharge of his duty, not in any other cases.[vii] Although it has been
said that substantive rights are to be determined in accordance with the provision of the
Constitution[viii], Section 80 of the Code is not a procedural provision, but a substantive one.[ix]
ESSENTIALS

A notice under S. 80 must contain

1. name, description, and place of residence of the person giving notice;

2. a statement of the cause of action; and

3. the relief claimed by him.

NOTICE WHETHER MANDATORY?

The provisions in section 80 are express and explicit by themselves and make the serving of
notice mandatory by not admitting any implications or exceptions. They are imperative in nature
and must be strictly complied with. Notice whether under section 80 is the first step in the
litigation.[xxiii]A court cannot entertain any suit unless the notice is duly served to the public
official under section 80(1).

A plaintiff filed a suit to stop the tax officer from selling the suit property he purchased from the
defendant, who was in arrears of income tax, it was held by the court that the central government
was a necessary party to the suit. Hence unless a notice has been served under Section 80, the
suit will not be maintainable[xxv]

The section is imperative and must undoubtedly be strictly construed; failure to serve a notice
complying with the requirements of the statute will entail dismissal of the suit.[xxvi]

ACT PURPORTING TO BE IN OFFICIAL CAPACITY

The expression “any act to be done by such public officer in his official capacity” takes within its
sweep acts as also illegal omission. Likewise, it also covers the past as well as future acts. All
acts done or which could have been done under the colour or guise by an officer in the ordinary
course of his official duties would be included therein[xxx].If the allegations in the plaint relate
to an act which was purported to be done by a public officer in his official capacity means that
the said act must be such that it could be done ordinarily by a person in the ordinary course of his
official duties. It does not cover acts outside the sphere of his duties [xxxi]There must be
something in the very nature of the act complained of which attaches to the official character of
the person doing it.[xxxii]

The test to be applied in these cases is whether the officer can reasonably claim protection for the
acts that he commits or that it was performed by him purely in his private or individual capacity.
In the case of him claiming protection notice under Section 80 is necessary, and in case it was
performed by him purely in his private or individual capacity it is not.[xxxiii]

FORM OF NOTICE

No particular has been prescribed under the code. Due to the above, there is no need to give it in
any particular form under Section 80. The mere satisfaction of all conditions prescribed in this
section is sufficient. Also, in the Amar Nath v. Union of India, it was held that the notice must
merely inform the opposite party about the nature and the basis of the claim and relief sought.
[xxxvi]

MODE OF SERVICE

A notice submitted under section 80 of the civil procedure code must be given to, or left at the
office of, the appropriate authority specified. This was held in the State of A.P V. Gundugola
Venkata[xxxvii] . IT has been specified in the code as to who the appropriate authority is under
section 80. As per the section, it must be given to the secretary of the department or the collector
of the district. Under this section, personal delivery of the notice is not necessary, thus making
the words “left at the office” redundant. The section, however, does not prohibit the personal
delivery of the notice. It further allows the notice to be sent through registered post.

LEAVE OF COURT : SECTION 80(2)

Through the amendment made to the civil procedure code in 1976, subsection 2 was added to
section 80. As per this, the aggrieved party can institute a suit against the government for
obtaining urgent or immediate relief with the leave of the court even without serving the notice
to the government or public office.[xli]This subsection, thus, engrafts an exception to the rule
laid down in subsection (1) of section 80 and allows the plaintiff to obtain urgent relief in grave
cases even without issuing the notice.[xlii]

The main objective of this is to prevent any failure or miscarriage of injustice in urgent cases. It
is the urgency and immediate relief which would weigh with the court while dealing with a
prayer to dispense with the requirement of notice and not the merits of the case.[xliii] Subsection
(2) however, is enacted in such a way that in this type of case, the court will not have any
authority to grant relief, interim or otherwise, unless a reasonable opportunity has been given to
the government to show cause in respect of the relief prayed for in the suit.

WRIT PETITION

As per Section 80 of the code, it can be stated that a writ petition filed under article 32 and article
226 of the constitution does not constitute a suit as per the definition and scope of this section.
Hence, prior notice to the government or public officer is not necessary before filing a petition in
the Supreme Court or in a high court[xliv]

Computation of Suit:

In computing the period of limitation for filing a suit, the period of notice should be excluded.
[xlv]

Premature Suit:

A suit instituted before the expiry of two months of notice as required by section 80 of the code
is liable to be dismissed only on that ground[xlvi]

Appeal:
An order passed under section 80 is neither a decree nor an appealable order, and hence, no
appeal lies against the order. [xlvii]

Revision:

Under Section 115 of the code, an order given under Section 80 is revisable as it considered as a
“case decided”. If a court subordinate to the High Court makes an order which is patently illegal
and suffers from jurisdictional error, then it can be rectified by the High Court.[xlviii]

Technical defect or error in notice: Section 80(3):-

Section 80(3) provides that no suit instituted against the Govt. or Public officer shall be
dismissed merely on ground of error or defect in the notice, if, in such, the name, description

and residence of the plaintiff had been so given as to enable the authority or public officer to
identify the person serving the notice and such notice had been delivered or left at the office

of the authority or public officer and the cause of action and the relief claimed by the plaintiff
had been substantially indicated therein.

The amendment to the code was made with the intention that justice is not denied to the
aggravated parties on the grounds of technical defects. Therefore, a notice under section 80
cannot be held to be invalid and no suit can be dismissed on the grounds that there has been a

certain technical defect or error in the notice delivered or on the ground that such notice was
served in an improper way.2

Exemption from arrest and personal appearance (Section 81):-

2
Disha Construction & Ors V. State of Goa & Anr., AIR 2012 SC
Section 81 of the code provides that in a suit against a public officer of any act purporting to be
done in his official capacity i.e. act of public officer as mentioned above, he has an exemption
from arrest and from attachment of his property until execution of decree. Further if defendant
that is public officer cannot absent himself from his duty, then he has exemption from personal
appearance during ongoing suit.

Execution of decree (Section 82):-

Section 82 provides that in a suit by or against govt. or public officer, decree is pass against govt.
or public officer it will not be executed unless it remains unsatisfied for the period of three monts
computed from the date of such decree. Further it provides that this provision regarding
execution of decree will apply on an order or award passed by any court or by any other
authority or if it were capable of being executed under this code or under any other law in force
as if it were a decree.

The section has been amended so as to eliminate certain cumbersome requirements. Before
amendment a court had to send a report to the state government before ordering. The decree
cannot be executed unless all the condition are complied with.3

ORDER XXVII

1- Suits by or against the government- It should be noted that in any suit by or against the
government, the plaint or the written statement should be signed by such a person, as the
government by general or special order, appoint in this behalf. State of Rajasthan v. Jaipur
Hosiery Mills4, in this case, it was held that the sanction to sign must be prior to the institution,
3
State v. Abdur Rahman, AIR 1960 J & K
4
AIR 1997 Raj 10
and if not complied with this, the signing shall be by an incompetent person, and further, issuing
of a retrospective sanction will not preserve the defect.

Government pleader is an agent under the order 27 of CPC. The government pleader acts as an
agent for receiving processes issued against the government. Also he is the only person to
intimate the court that he is representing the government and no stamped power of attorney or
vakalatnama is required for the same.5

Lutfar Rahman v. State of West Bengal6. In the aforementioned case, it was held that when a
person other than the government pleader wants to act as an agent, it is possible only when the
government agent intimates the Court that the former is acting under his directions. Rule 5 of
Order 27, has been discussed in the next segment of this article.

2- Attendance of person being able to answer the questions related to suits against the
government- The court may, in any case where government pleader is not accompanied by
person on the part of the government and if he is able to answer the questions relating to suit, the
court may direct the attendance of that person.7

CONCLUSION

This paper has defined the process of suit by or against a govt. and public officer acting in
purporting to his official duty and has explained the provisions in detail about the litigation of the
same.

After examining the provisions as mentioned we have understand that for any suit against a govt.
first of all it is necessary that party should be name according to section 79 of CPC. Further to
institute a suit against govt. 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

5
Mulla, Code of Civil Procedure (Abridged) 390-406 (ed 523)
6
AIR 1954 Cal 455.
7
AIR 1980 P&H 318
can be done as early as possible. After concluding the above topics, this paper 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 Order
XXVII and other privileges given to parties i.e. under Section 81 & 82 of the code.