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SYMBIOSIS LAW SCHOOL, PUNE

INTERNAL ASSESSMENT
OF

Civil Procedure Code and Limitation Act-II

SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS


IN THEIR OFFICIAL CAPACITY

SUBMITTED BY,
NAME-BHASKAR TRIPATHI
DIVISON- ‘A’
PRN NO.-15010125079
Suits By or Against The Government or Public Officers In Their Official Capacity

TABLE OF CONTENTS
ABSTRACT .................................................................................................................................... 3

INTRODUCTION .......................................................................................................................... 3

ANALYSIS- SECTION 79: NAME OF THE PARTY IN SUIT................................................... 4

SECTION 80 ................................................................................................................................... 4

SECTION 80: SCOPE AND APPLICABILITY ............................................................................ 6

SECTION 81 : EXEMPTION FROM ARREST AND PERSONAL APPERANCE .................... 6

SECTION 82: EXECUTION OF DECREE ................................................................................... 7

ORDER XXVII : PROCEDURE .................................................................................................... 7

CONCLUSION ............................................................................................................................... 8

BIBLIOGRAPHY ........................................................................................................................... 9

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Suits By or Against The Government or Public Officers In Their Official Capacity

ABSTRACT

The Government enjoys certain privileges in Civil litigation. S.80 of the Code of Civil Procedure
engrafts one such privilege. The above section enjoins a duty on the person who seeks a remedy
against the Government or against a public officer in his official capacity, to serve a notice in
writing setting out the cause of action and relief claimed and he is restrained from instituting the
suit before the expiry of two months from the date of service of such notice. The legislative
object behind the above provision is to give the government an opportunity to examine the legal
position with regard to the claim made and to settle the claim without litigation, if so advised. In
this sense, the section seeks to avoid unnecessary litigation and public expenditure. It was
apprehended that the absence of such a provision might prompt people to bring suits against the
Government so as to prevent it from undertaking any measure for the common good of the
society. If such a course is allowed, it will act as a retarding factor on the pace of the
development activities of the Government. Hence the laudable object is that the Government
should not be dragged into unnecessary litigation and thereby waste public money.

INTRODUCTION

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 Constitution .1These 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.

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Suits By or Against The Government or Public Officers In Their Official Capacity

ANALYSIS- SECTION 79: NAME OF THE PARTY IN SUIT

Section 79 of the Code provides-


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.
In Chief Conservator of Forests, Government of A.P. v. Collector 1, 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: -
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.

SECTION 80

Section 80 provides that where a suit is to be instituted against the Government or any public
official for any act purported to be done in his official capacity, the person filing the suit must
give a notice of at least 2 months before filing the suit. In Secretary of State for India v.
Perumal Pillai2 the Court observed that the object of notice was to give the Defendant an
opportunity of settling the claim without litigation. Similarly, the Bombay High Court observed
that the main object of the section was to enable the Secretary of State, who necessarily acted
usually through agents, time and opportunity to reconsider his legal position when that position
was challenged by persons alleging that some official's order had been illegally made to their
prejudice.3
The difference in the case of a public official is that the suit must be instituted for acts purported
to be done by him in his official capacity. It means a series of acts and is applicable even in
cases of misfeasance or nonfeasance. The act must be such as is done or would have been done

1
AIR 2003 SC 1805.
2
(1901) ILR 24 Mad, 279.
3
Scy of state V Gulam Rasul Gyasudin Kuwari, (1916) ILR 40 Bom. 392.

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Suits By or Against The Government or Public Officers In Their Official Capacity

in the normal course of his official duties. The notice must either be served on the person
concerned or left at their office.
The person entitled to receive the notice in such cases is-
i) in case of the suit against the Central Govt., except where it relates to a railway, a
Secretary to that Govt;
ii) in the case of a suit against the Central Govt. where it relates to a railway, the General
manager to that railway;
iii) in the case of a suit against the Govt. of the State of Jammu and Kashmir, the Chief
Secretary to that Govt. or any other officer authorized by that Govt. in that behalf;
iv) in the case of a suit against any other state Govt.. a Secretary to that Govt. or the
Collector of the district; and
v) in the case of a public officer, such public officer.4

The Section enumerates two types of case: (1) Suit against Government; and (2) Suit against
public officers in respect of acts done or purporting to be done by such public officers in their
official capacity. Regarding the first class of cases the notice must be given in all cases.
Regarding the second class of cases, however, notice is necessary only where the suit is in
respect of any act “purporting to be done” by such public officer in the discharge of his duty, and
not otherwise.5 The three essential requirements of S. 80 are: first, the addressee should be
identified and must have received the communication; secondly, there should be no vagueness or
indefiniteness about the person giving the notice, who must also be the person filing the suit and
the notice must also give the details which are specified in S. 80; and, thirdly, the two months‟
time allowed must expire before the suit is laid. Once these requirements are fulfilled minor
details like the mis description of the person to whom the communication is addressed should not
make it an improper notice which does not comply with the requirements of S. 80, C.P.C.

4
Section 80(1) of CPC, 1908.
5
State of Bihar v. Jivas Das, AIR 1971 Pat 1970.

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SECTION 80: SCOPE 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. 6 Although it has been
said that substantive rights are to be determined in accordance with the provision of the
Constitution7, Section 80 of the Code is not a procedural provision, but a substantive one.8
A statutory body may be an instrumentality of the state within the meaning of Art. 12 of the
Constitution9, nevertheless, it would not answer the description of ‘government’ as it is
understood in law and in the context of S. 80.10
This section is explicit and mandatory and admits of no implications or exceptions. 11 The
language of this section is imperative and absolutely debars a court from entertaining a suit
instituted without compliance with its provisions. If the provisions of the section are not
complied with, the plaint must be rejected under O. 7, r. 11(d).12
Section 80 is mandatory and a suit filed before the expiry of the period of two months, which
does not necessarily mean 60 days but has to be calculated month-wise13, after the serving of
notice as per S. 80(1) is not maintainable.14

SECTION 81 : EXEMPTION FROM ARREST AND PERSONAL APPERANCE

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

6
State of Maharashtra v. Chander Kant, (1977) 1 SCC 257
7
Nirmal Chand v. UOI, AIR 1966 SC 1068
8
Kanhayalal Oswal v. Govt of India, AIR 1974 Guj 37
9
Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331
10
Minakshi Patra v. Secretary, Irrigation and Power, Court of Orissa, AIR 1999 Ori 137.
11
Rambramha v. Dominion of India, AIR 1958 Cal. 183.
12
Jagdish Chandra v. Debendra Prasad, AIR 1931 Cal 503.
13
Laxmi Narayan v. State, AIR 1977 Pat 73.
14
Bihari Chowdhry v. State of Bihar, AIR 1984 SC 1043.

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that is public officer cannot absent himself from his duty, then he has exemption from personal
appearance during ongoing suit.

SECTION 82: EXECUTION OF DECREE

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
months 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.15

ORDER XXVII : PROCEDURE

ORDER XXVII – SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS


IN THEIR OFFICIAL CAPACITY
1. Suits by or against Government.
2. Persons authorised to act for Government.
3. Plaints in suits by or against Government.
4. Agent for Government to receive process.
5. Fixing of day for appearance on behalf of Government.
5A. Government to be joined as a party in a suit against a public officer.
5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a
settle.
6. Attendance of person able to answer questions relating to suit against Government.
7. Extension of time to enable public officer to make reference to Government.
8. Procedure in suits against public officer.
8A. No security to be required from Government or a public officer in certain cases.
8B. Definitions of “Government” and “Government pleader”.

15
State v. Abdur Rahman, AIR 1960 J & K.

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CONCLUSION

After examining the provision as mentioned it is understood 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
institutive a suit against govt. or public officer acting in purporting to his official duty it is
mandatory to give prior notice of 2 months. The only exception to this rule is provided by
addition of 80(2) after the amendment of 1976.
The provisions of S.80 C.P.C have proved fruitless. When notice under S.80 is delivered the
Slate or the Public Officer do not like to settle the claim of the Suit outside Court, but they Want
for the suit. No1 a single claim 1s settled by the State on a notice under S.80. The notice is sent
under registered post with acknowledgement due. But when the state appears in the suit, the
service of notice is flatly denied in the written statement. Thus the intention of S.80 is flatly
Ignored by the State or its officers. So 11 is a futile provision and delays the suit for two months
unnecessarily It deserves to be deleted from the C.P.C. for speedy justice.

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BIBLIOGRAPHY

CASES
 Chief Conservator of Forests, Government of A.P. v. Collector AIR 2003 SC 1805
 Secretary of State for India v. Perumal Pillai (1901) ILR 24 Mad, 279.
 Secretary of state V Gulam Rasul Gyasudin Kuwari, (1916) ILR 40 Bom. 392.
 State of Bihar v. Jivas Das, AIR 1971 Pat 1970.
 State of Maharashtra v. Chander Kant, (1977) 1 SCC 257
 Nirmal Chand v. UOI, AIR 1966 SC 1068
 Kanhayalal Oswal v. Govt of India, AIR 1974 Guj 37
 Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331
 Minakshi Patra v. Secretary, Irrigation and Power, Court of Orissa, AIR 1999 Ori 137.
 Rambramha v. Dominion of India, AIR 1958 Cal. 183.
 Jagdish Chandra v. Debendra Prasad, AIR 1931 Cal 503.
 Laxmi Narayan v. State, AIR 1977 Pat 73.
 Bihari Chowdhry v. State of Bihar, AIR 1984 SC 1043.
 State v. Abdur Rahman, AIR 1960 J & K.
BOOKS
 Civil Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company,
Lucknow 16.
 Mulla on the Code of Civil Procedure, J.M. Shelat, 18th edn., LexisNexis Butterworths
17.
 B. M. Prasad & S. K. Sarvaria, Mulla‟s Code of Civil Procedure (17ed. 2007)

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