A

PROJECT

ON

SUITS IN PARTICULAR CASES

SUBMITTED TO

MR. B.K. SINGH

(ASSISTANT PROFESSOR)

SUBMITTED BY

SHIVANGI AGRAWAL

ROLL NO-16001144

B.A. LL.B

SEM-7

SCHOOL OF LAW
GURU GHASIDAS UNIVERSITY, BILASPUR
WWW.GGV.AC.IN

1
 DECLARATION

I hereby declare that this project entitled “Suits in particular cases” is completed under the
supervision of Mr. B. K. Singh and is the original piece of work of undersigned.

All information provided here are to the best of my knowledge.

All information in this document has been obtained and presented in accordance with
academic rules and conduct. It is not submitted to any other organization for any other
purpose.

I am indebted to the authors of the books I referred for the project and the writers of the
articles of websites I relied upon.

Shivangi Agrawal

Rollno.16001144
B.A.LL.B (Sem VII) Faculty Signature

2
 CERTIFICATE

I am glad to submit this project as a part of my academic assignment. It is to certify that, the
original and genuine research work is carried out to investigate about the subject matter and
the related data collection.

I have taken proper care and shown utmost sincereness in this project.

Hereby I hope the project proves satisfactory to authorities and informative to readers.

Further, hoping that it up to the expectation of people in concern and is according to the
prescribed guidelines.

Shivangi Agrawal
Roll no.16001144
B.A.LL.B (Sem VII) Faculty Signature

3
 ACKNOWLEDGEMENT

Primarily, it would be my pleasure to express my sincere thanks to Mr. B. K. Singh for his
helping hand. His guidance and constant supervision for project are responsible for attaining
its present form. I am grateful to him for extension of his helping hand towards me.

Then, I would like to express my gratitude to my seniors and my fellow classmates for their
whole hearted cooperation and support.

I would also thank my parents for their constant motivation and shall remain indebted to
them.

Lastly, I am thankful to each and every person who has contributed towards this project.

Shivangi Agrawal

Roll no. 16001144

B.A.LL.B (Sem VII) Faculty Signature

4
 CONTENT

 General concept of suit

 Suit by or against Government: Section- 79-80
 Suit by aliens: Section- 83
 Suit by or against Foreign rulers, Ambassadors and Envoys: Section- 84- 87-A
 Suit by or against Rulers of former Indian States: Section-87-B
 Interpleader Suit : Section- 88

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 GENERAL CONCEPT OF SUIT

The term suit is not defined under the in the C.P.C. but by various decisions it can be said that
“Suit ordinarily means a civil proceeding instituted by presentation of a plaint. Civil suit is
the institution of litigation for enforcement of civil rights (or substantive rights, it may be
against state or individual). A suit is resulted into decree. Without suit, there cannot be a
decree.

There are four essentials of a suit:

1. Name of Parties (there must be two opposing parties) - In a suit there must be at least
two parties the plaintiff & the defendant.

2. Cause of Actions – it is a set of facts or circumstances that a plaintiff is required to

prove. The cause or the set of events or circumstances which leads or resulted into
presentation of a plaint or filing a suit. – lay man language

Legally – The cause of action means every fact which is necessary for the plaintiff(s) to be
proved with a view to obtain a decree in his favor.

3. Subject matter – there must be a subject matter (with what respect or aspect civil dispute
is).

Section-9. Courts to try all civil suits unless barred. The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits
of which their cognizance is either expressly or impliedly barred.

4. Relief claimed by the plaintiff – no court will give relief unless relief is specifically
claimed by the party

Relief is of two types-

1) specific relief and

2) alternative relief.

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Jurisdiction

Jurisdiction means the extent of power of a court to entertain suits and applications. It
signifies the power, authority, competency of the court to adjudicate the disputes presented
before it.

1. Territorial Jurisdiction - Every court has fixed geographical boundaries

2. Pecuniary Jurisdiction -refers to the value of cases that can be presented before for
adjudication
3. Jurisdiction relating to subject matter - It is power and authority of a court to try a
particular type of suit
4. Original Jurisdiction – Exercise of the original jurisdiction, court tries original suits
instituted.
5. Appellate Jurisdiction – In exercise of the appellate jurisdiction, the court hears
appeals from decree and order passed by subordinate courts.

Note:- Certain courts which only have original jurisdiction but some have original and
appellate jurisdiction both.

Section 10. Stay of suit- No Court shall proceed with the trial of any suit in which the matter
in issue is also directly and substantially in issue in a previously instituted suit between the
same parties, or between parties under whom they or any of them claim litigating under the
same title where such suit is pending in the same or any other Court in India having
jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established
or continued by the Central Government and having like jurisdiction, or before the Supreme
Court.

Section 11 .Res judicata. No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between the
same parties, or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally decided by such Court

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 SUIT BY OR AGAINST GOVERNMENT: SECTION 79-80

Section 79 provides for suits by or against government. According to which, in a suit by or

against the Government, the authority to be named as plaintiff or defendant, shall be, in case
of suits against Central Government, the Union of India and in case of State Government, that
particular State.

Scope: Section 79 does not enlarge or affect the extent of the claims or liabilities enforceable
by or against the Government; they have to be determined under Articles 294-300 of the
Indian Constitution. This section simply provides the procedure where a suit is to be
instituted by or against the Government. The section gives no cause of action but only
declares the mode of procedure when a cause of action has arisen.1

The court should never extend indulgence to Government so as to give the impression to
public that it is a favoured litigant. It is equally necessary to insist that Government does its
duties efficiently so that public interest may not suffer.2

Suits when lie against Government?

Suits lie against the Government, when it acts under the colour of legal title and not as a
sovereign authority. The Government will be liable for torts committed by its servant in the
course of their employment, provided it is not connected with the sovereign powers of the
State.3

There is no provision of the statue under which President of India can be made a party in the
civil proceedings even though the contracts or agreements are executed on behalf of the
Union of India in the name of the President as provided under Art. 299 of the Constitution.
Impleading the President of India as a party is wrong and illegal and any notice served on
him is of no consequence.4

Distinction between S. 79 and S. 80: Section 79 covers the subject of the authorities which
are to be named in a suit filed by or against the Central Government or State Government.
Section 80, on the other hand, is not a procedural provision but a substantive provision. It

1
Jehangir v. Secretary of State, 6 Bom. L.R. 131
2
1970 Ker LJ 142
3
State of Rajasthan v. Vidyawati, AIR 1962 SC 933
4
Union of India v. Sh. Surinder Chand Mehra, AIR 1985 P. & H. 68

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interdicts, inter alia, institution of suits unless compliance is made with its provisions when
the suits arise out of causes of action against certain Governments. In Raghunath Das v.
Union of India5 it was held by the Supreme Court that, Sec. 80 must be strictly complied with
but, it was added, strict construction does not mean that it should be construed in a pedantic
manner divorced from common sense.6

Suit against Railway:

A suit against the Indian Railways administration has to be brought against and in the name
of the Union of India as it is owned by the Central Government. It can be sued in the Court
within whose territorial jurisdiction the headquarters of one of the railways run by the Union
is situated.7

Act of the State:

Act of State, includes two main classes of acts – acts which are capable of being done by a
private individual and acts which only the Government can perform, such as the making the
treaties and the declaration of war. The test whether an act is or not an act of State excluding
the jurisdiction of the Court is whether it is an act of the State in those external relations,
which municipal or positive law addressed, does not profess to regulate.

Acts of State, properly so called, are never justiciable in Courts of law or municipal Courts of
the country and the State is not answerable to them. There the immunity is absolute.

Jurisdiction: A suit against the Government can only be brought in Court in the jurisdiction of
which the cause of action arises.8

Section 80:

Object: The object of the notice under Section 80 is to give to the Government or the public
servant concerned an opportunity to reconsider its or his legal position and if that course is

5
AIR 1969 SC 674
6
Kanhaiya Lal Oswal, Messer’s v. Government of India, AIR 1975 Guwahati 37
7
Union of India v. Sri Ladulal Jain, AIR 1963 SC 1683
8
Subbaraya Mudali v. Government, 1 M.H.C.R. 286

9
justified to make amends or settle the claim out of court9 so that the parties may be saved
from unnecessary litigation.10

The legislative intention behind this section is that public money and time should not be
wasted on unnecessary litigation and the Government and the public officers should be given
a reasonable opportunity to examine the claim made against them lest they should be drawn
into avoidable litigations. The section is not intended to be an instrument of oppression
against the subject.11

The primary point for consideration is whether the notice gives sufficient information as to
the nature of the claim such as would enable the recipient to avoid litigation. So long as the
notice substantially informs the defendant of the nature of the suit and the grounds of
complaint, the legal requirement would stand satisfied.12

It is the duty of the State to receive the notice under Section 80 of the Code of Civil
Procedure and also any error or defect in such a notice could not be permitted to be treated as
an excuse for defeating a just claim.

Section 80 has become a ritual because the administration is often unresponsive and hardly
lives up to the Parliament's expectation in continuing Section 80 in the Code despite the
Central Law Commission's recommendations for its deletion. Indeed it should be a directive
on the part of the State to empower its law officer to take steps to compose disputes rather
than continue them in Court. This exactly is the object and purpose of giving a notice before
suit.

Scope: The words used in Section 80 are wide and unambiguous; they are ‘express, explicit
and mandatory’. There are two parts of the section. One in regard to the institution of the suit
against the Government and the other against a public officer.

No suit can be instituted against the Government or, as a matter of that, against the State or
the Union until the expiration of two months next after notice in writing has been given to the
proper authority. It matters little whether the suit relates to the past action of the Government
or is in relation to the threatened action or injury. But if the suit is to be filed against a public
Officer, notice is mandatory only when it is in respect of any act purporting to be done by

9
Beohar Rajendra Sinha v. State of Madhya Pradesh, AIR 1960 SC 1256
10
New India Assurance Co. v. D. D. Authority, AIR 1991 Del 298 at 281
11
Lady Dinbai Dinshaw Petit v. The Dominion of India, AIR1951Bom72.
12
Union of India v. Jiwan Ram, AIR 1958 SC 905

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such public officer in his official capacity. If the act is not one purporting to be done by the
officer in his official capacity, no notice is necessary.13 In view of the provisions of the
General Clauses Act, the expression 'act' also includes illegal omissions. Therefore if the suit
does not relate to any 'act' or 'illegal omission' purporting to be done by a public officer in his
official capacity, Section 80 will not have any application.14

Section 80 does not define the rights of parties or confer any rights on the parties. It only
provides a mode of procedure for getting the relief in respect of a cause of action. A notice
under Section should be given before the institution of the suit.15

Where, a suit is filed before the expiration of the period of notice contemplated by Section
80, there is no alternative to the Court but to reject the plaint under Order VII, Rule 11(d) of
the Code. Similarly where the notice has not been served as required under the section the
Court has no jurisdiction to stay the proceedings, instead the plaint should be rejected under
Rule 11 of Order VII.16

The section can obviously have no application to the continuation of a suit properly instituted
when at the time of the institution the Government was not a necessary party. If the
Government was a necessary party against whom the plaintiff sought relief or must be
deemed to have sought relief, then, the fact that the Government was not made at the
inception a party, but was subsequently added as a party would not make any difference in
principle. In such cases, the suit must be deemed to have been instituted against the
Government only when the Government is made a party, and obviously Section 80 would
apply to such a case and the Government would be entitled to the two months' notice. But in a
case where on the date of the institution of the suit, the plaintiff could not have claimed, and
did not claim, any relief against the Government and therefore no notice under Section 80
was necessary, but if it transpires during the pendency of the suit that the interest of the
defendant has devolved on the Government, either by voluntary act of the Government or by
operation of law, there is no fresh institution of the suit as against the Government. The
Government only steps into the shoes of the party whose interest has devolved on it. Because

13
State of Bihar v. Jiwan Das Arya, AIR 1971 Pat 141.
14
Amalgamated Electricity Co v. Municipal Committee Ajmer, AIR 1969 SC 227
15
Sabhu v. Ramsa, AIR 1953 HP 123
16
State of A.P. v. G.V. Surya Narayana, AIR 1965 SC 11

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in such a case there is no institution of a suit against the Government at the time when it is
brought on record in the pending suit, Section 80 cannot have any application.17

The notice must be reasonably construed. Any unimportant error or defect cannot be
permitted to be treated as an excuse for defeating a just claim. In considering whether the
provisions of the statute are complied with, the Court must take into account the following
matters in each case (1) whether the name, description and residence of the Plaintiff are given
so as to enable the authorities to identify the person serving the notice; (2) whether the cause
of action and the relief which the Plaintiff claims are not set out with sufficient particularity:
(3) whether a notice in writing has been delivered to or left at the office of the appropriate
authority mentioned in the section: and (4) whether the suit is instituted after the expiration of
two months next after notice has been served, and the plaint contains a statement that such a
notice has been so delivered or left.18

No doubt it would be open to a Court not to decide all the issues which may arise on the
pleadings before it if it finds that the plaint on the face of it is barred by any law for instance
the plaint does not show that notice under Section 80 of the Code of Civil Procedure claiming
relief was served in terms of the said section, it would be the duty of the court to reject the
plaint recording an Order to that effect with reason for the order. In such a case the court
should not embark upon a trial of all the issues involved and such rejection would not
preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action.
But, where the plaint on the face of it does not show that any relief envisaged by Section 80
of the Code is being claimed, it would be the duty of the court to go into all the issues which
may arise on the pleadings including the question as to whether notice under Section 80 was
necessary. If the court decides the various issues raised on the pleadings, it is difficult to see
why the adjudication of the rights of the parties, apart from the question as to the applicability
of Section 80 of the Code and absence of notice there under should not operate as res judicata
in a subsequent suit where the identical questions arise for determination between same
parties.19

17
S.S.Velayudham Pillai v. The Governor General in Council, AIR 1952 Mad 783.
18
Beohar Rajendra Sinha v. State of M. P., AIR 1960 SC 1256
19
Gangappa Gurupadappa Gugwad Gulbarga v. Respondent: Rachawwa, Widow of Lochanappa Gugwad, AIR
1971 SC 442

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Public sector undertakings are not Government e.g. State Electricity Board is not Government
for the purposes of this section or its officers are public servants.20

Contents of notice:

Notice under Section 80 must contain the following facts (i) Name, and sufficient address to
identify the Plaintiff (ii) reasonably sufficient particulars disclosing cause of action and (iii)
all reliefs claimed. With regard to the requirement (ii) and (iii) it must be admitted that the
notice under Section 80, Code of Civil Procedure is not a pleading and need not be a verbatim
copy of the plaint, but having regard to the object for which Section 80 is enacted, it must
contain such details of facts which will be sufficient to inform the parties regarding the nature
and basis of the claim and the relief sought. If the notice is not in full compliance with the
requirement of Section 80, Code of Civil Procedure it becomes invalid. The position then
would be as if no notice under Section 80, Code of Civil Procedure had at all been issued and
consequently, the suit is bound to fail.

‘Cause of action’ in the context of Section 80 Civil Procedure Code must be given a
“popular” meaning, namely, that it is that act by doing which or by not doing which the
defendant furnishes the Plaintiff, so to speak, the motive to file a suit.21

Section 80 requires to state the cause of action and the plaint is to contain a statement that
notice has been delivered or left. The service of notice may form a part of the cause of action
for the purpose of jurisdiction. However, if the delivery of the notice was part of the cause of
action then how the whole cause of action could be stated in the notice because it would have
to be stated before the notice was sent.22

Section 80 does not require that the name or any other particular of the Defendant should be
furnished. It only requires that the notice must be delivered to the proper authority or person
mentioned in the section. Apart from this notice must be served to the proper person at his
appropriate office.

Section 80, according to its plain meaning requires that there should be identity of the person
who issues the notice with the person who brings the suit. Where an individual carries on

20
V. Padmanabhan v. Kerala S. E. B., AIR 1989 Ker 86.
21
Dominion of India v. L. Badu Lal, AIR 1962 All 461
22
Jaharlal Pagalia v. Union of India, AIR 1959 Cal 273

13
business in some name and style the notice has to be given by the individual in his own name,
for the suit can only be filed in the name of the individual.23

In case it is not necessary for the Plaintiff to give particulars of negligence or misconduct in
the plaint, it would not be necessary to give such particulars in the notice, and a mere
allegation of negligence or misconduct shall be sufficient and the notice under Section 80,
Code of Civil Procedure not containing particulars thereof shall be valid. When it is not
necessary for the Plaintiff to give particulars of negligence or misconduct in the notice, the
giving of incomplete or insufficient particulars shall not invalidate the notice.24

Waiver of notice:

Notice under Section 80 can be waived by the party for whose benefit it is intended. There is
no doubt that even though the provisions of Section 80 are mandatory, the provisions are
made for the benefit of the party, namely, the State or the public officer, as the case may be,
and in a given case it is open to the party for whose benefit the provision has been made to
waive the compliance with the requirements of such a provision.25

The plea of want of notice under Section 80 Code of Civil Procedure, must be taken at the
earliest possible opportunity and must be specifically pleaded. Where such a plea is taken by
the defendant at a very late stage of the suit and at a time when the Plaintiff would be
precluded by the law of limitation from bringing a further suit against the defendant, the
Defendant must be deemed to have waived the privilege of notice. 26 However, it has been
observed by the Privy Council that merely because an objection with regard to non-
compliance with the provisions of Section 80 has been taken late an inference to waiver
cannot be drawn.27

Act done in official capacity:

It is clear that the words “purporting to be done by such public officer” in Section 80, of
Code of Civil Procedure, refer to some act already done by the public officer. The word
‘purporting’ also makes it clear that that section refers to an act done by a public officer.28

23
S.N. Dutt v. Union of India, AIR 1961 SC 1449
24
Sahu Vanaspati Traders v. Union of India (UOI), AIR 1966 All 333
25
Paleti Sivaramkrishnaiah v. Executive Engineer, AIR 1978 AP 389
26
Purna Chandra Sarkar v. Radharani Dassya, AIR 1931 Cal 175.
27
Vallayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197
28
Bai Jilekhabai Aderman v. Competent officer, AIR 1961 Guj 85

14
If a public officer has jurisdiction to do certain things and in exercise of that jurisdiction, he
does a thing wrongly or even with mala fides, Section 80 will apply to his case whereas, if he
has at all no jurisdiction to do the thing, there is no room for application of the section even
though he pretends to be doing certain act in his capacity as a public officer.29

When an officer does certain act within his jurisdiction but he exceeds his jurisdiction or acts
irregularly or maliciously, a notice under Section 80 is necessary.

The offence alleged to have been committed must have something to do, or must be related to
some manner, with the discharge of official duty. It must not matter even if the act exceeds
what is strictly necessary for the discharge of the duty, as this question will arise only at a
later stage when the trial proceeds on the merits. What the court must find out is whether the
act and the official duty are so inter-related that one can postulate reasonably that it was done
by the accused in the performance of the official duty, though possibly in excess of the needs
and requirements of the situation.30

Period of two months:

The bar under Section 80 is against the institution of the suit itself. Section 80 specifies the
period after which a suit to which Section 80 applies can be instituted. The words "until the
expiration of two months next after notice in writing has been delivered to or left at” are not
without significance. The effect of these words in Section 80, therefore, clearly is that unless
the period of two months next after the delivery of the notice either to the Government or to
the public officer concerned expires, the section prohibits the institution of the suit.

Thus, it is well-settled that a suit against the Government instituted during the currency of
notice under Section 80 is not maintainable and must be dismissed in limine.31

While computing the ‘expiration of two months’ both the terminal dates are to be excluded32
Where in a suit the Government as well as private individuals are parties, period of two
months’ time for notice under Section 80, would be excluded in computing the period of
limitation against the private individual also.33

29
Mohanta Raghabananda Das v. D.V.A. Naidu, AIR 1961 Ori 31
30
Matajog Dobey v. H.C. Bhari, (S), AIR 1956 SC 44
31
Bihar v. Kamakshya Narain Singh, AIR 1950 Pat 360
32
Jai Charan v. State of U.P., AIR 1968 SC 5
33
T. P. K. Nair v. Union of India, AIR 1991 Ker 80 at 82

15
Service of notice:

Personal service is not a condition precedent for the purposes of compliance of provisions of
Section 80 (1). The notice under the section can be delivered at the office of the defendant
Government. Also, in view of the provisions of Section 27 of the General Clauses Act, the
notice can be served by getting it delivered through registered post. When the service is being
made through the Collector, it should be done to the Collector of the district where cause of
action has arisen.34

Amendment of plaint after notice U/s 80 being issued:

Where the plaint is amended by the plaintiff on account of new facts coming to his
knowledge, fresh notice to defendant under Section 80 is not required or where a plaint is
amended owing to facts which have arisen subsequent to the institution of the suit a fresh
notice under Section 80 need not be served by the plaintiff.35

The suit may be proceeded with if notice has been given, but the fact of delivery of notice has
not been pleaded, if, subsequently, the plaint is amended by pleading that fact.36 Also where
some pleas are deleted by way of amendment it is not necessary to serve a fresh notice on the
Government or public officer.37

However, when a State Government or public officer is impleaded as party during the
pendency of suit the plaintiff must serve on him two months' notice under Section 80
otherwise the suit becomes not maintainable38

Notice in railway claims:

In railway claim matters, the disputes which are covered under the Railway Claims Tribunals
Act, 1987, there is no necessity of serving notice under Section 80 of the Code as the
application before the tribunal constituted under said Act is not a suit. However, in other suits
before Court’s notice under Section 77 of the Railways Act and under Section 80 of the Code
of Civil Procedure are mandatory and must be given to Union of India through the General
Manager of the concerned railway.39

34
State of U. P. v. Raja Ram Lal, AIR 1966 All 159 at 161
35
Lalchand Chowdhury v. Union of India, AIR 1960 Cal 270
36
Bholaram Chowdhury v. Administrator General, 8 Cal WN 913
37
State of Rajasthan v. Associated Stone & Co., AIR 1971 Raj 128.
38
Smt. Sooraj v. S.D.O., Delhi, AIR 1995 SC 872 at 873.
39
State v. Southern Railways, AIR 1976 SC 2538

16
Requirement of notice in case of UT’s:

Section 55 of the Union Territory Act, 1963 makes it clear that all suits and proceedings in
connection with administration of Union territory are to be instituted against the Government
of India. The expression “Government of India” cannot refer anything other than the Central
Government and as such a notice under Section 80 of the Code of Civil Procedure must be
given through its Chief Secretary to the Government of the union territory against whom the
suit is filed by impleading Union of India as the defendant.40

SUIT BY ALIENS : SECTION 83

Alien enemies residing in India, with the permission of the Central Government, and alien
friends, may sue in any court otherwise competent to try a suit, as if they were citizens of
India. Alien enemies residing in India without such permission or residing in a foreign
country which is at war with India shall be deemed to be an Indian enemy.

SUIT BY OR AGAINST FOREIGN RULERS, AMBASSADORS AND

ENVOYS: SECTION 84- 87-A

Section 84: A foreign State may sue in any competent Court, provided that such suit is for
the enforcement of private right vested in the ruler of that State or in any officer of such state
in his public capacity.

“Foreign State” means any state outside India which has been recognized by the Central
Government.41The term “Ruler”, in relation to a foreign state, means the person who is for
the time being recognized by the Central Government to be the head of that State.42

Section 85: The Central Government may, at the request of the ruler of a foreign state,
appoint any person to prosecute or defend a suit on behalf of such ruler. Such a person
appointed by the Central government shall be deemed to be a recognized agent under the
Code of the ruler of the foreign state.

40
Kanhaiya Lal v. Government of India, AIR 1975 Gau 37
41
Section 87-A(a)
42
Section 87-A(b)

17
Section 87: A Ruler of the foreign state may sue in the name of his State. Likewise, a Ruler
of a foreign state may be sued in the name of his State.

Section 86: It enacts that no suit shall be instituted against a foreign state, a ruler of a foreign
state, or an ambassador or envoy of a foreign state without the consent of the Central
Government. Such consent shall not be given unless the Central Government is satisfied that
the condition laid down in sub section (2) of this section has been fulfilled.

SUIT BY OR AGAINST RULERS OF FOREIGN INDIAN STATES:

SECTION 87- B

In the case of any suit by or against the ruler of any Indian State which is based wholly or
partly upon a cause of action which arose before the commencement of the Constitution, the
same can be filed in accordance with the provisions in relation to suits by or against foreign
rulers, ambassadors and envoys.

“Former Indian State” means any such Indian State as the Central Governor may, by
notification in the Official Gazette, specify for the purpose of Section 87-B of Code.

WHERE INTERPLEADER SUIT MAY BE INSTITUTED

SECTION-88 :Where two or more persons claim adversely to one another the same debt,
sum of money or other property, movable or immovable, from another person, who claims no
interest therein other than for charges or costs and who is ready to pay or deliver it to the
rightful claimant, such other person may institute a suit of interpleader against all the
claimants for the purpose of obtaining a decision as to the person to whom the payment or
delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be
decided, no such suit of interpleader shall be instituted.
“To interplead” means “to litigate with each other to settle a point concerning a third party.”
An interpleader suit is a proceeding by which a person from whom some persons are
claiming same property, debt or money and who does not himself claim such property debt or
money and neither dispute such debt, such person can file a suit claiming that he is ready to

18
pay or deliver the said property or money to rightful claimant and can protect himself from
legal proceedings. Meaning thereby, an 'interpleader suit' is a suit in which the real dispute is
between the defendants only.

Conditions to Institute Interpleader Suit:

Following conditions must be satisfied to institute an interpleader suit:

(a) there must be some debt, sum of money or other property movable or immovable in
dispute;

(b) two or more persons must be claiming it adversely to one another;

(c) the person from whom such debt, money or property is claimed, must not be claiming any
interest therein other than the charges and costs and he must be ready to pay or deliver it to
rightful claimant; and

(d) there must be no suit pending in which the rights of the rival claimants can be properly
decided.

Scope and applicability of the section:

Where X is under a liability for any debt, sum of money, or other property, claimed adversely
by A or B or more, and he desires protection against a wrong payment or delivery, he can file
a suit under this section. The only way, in fact, in which he can protect himself is by filing
such a suit; otherwise if he litigated with the claimant separately, he would have to pay the
costs of the successful claimant. It is necessary that the liability to someone must be admitted
and there must be no collusion and no interest in the subject matter other than for charges or
costs.

Each of the defendants so interpleading is virtually in the position of a plaintiff and his claim
will be governed by the rules of the Limitation Act. A reading of S. 88, Civil P. C., would
clearly show that the court does not have jurisdiction to travel beyond what has been admitted
by the plaintiff as due from him/her or it.

In order to determine whether a suit is an interpleader suit under the section the Court
must have regard to all the prayers in the plaint. The mere fact that the plaintiff requires the
defendants to interplead as regards one of the reliefs claimed would not necessarily make it
an interpleader suit.

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Claims must be bona fide and adverse to one another:

The claims of the defendants must be bona fide ones, though they need not have a
common origin. The Court must be satisfied that there is a real question to be tried. A
mere pretext of conflicting claims is not sufficient. Where there was no claim or counter
claim between the parties, the provisions of S. 88 would not apply. The defendants must
also claim the money or property adversely to one another from the plaintiff. A decision
given on the claims of the co-defendants in an interpleader suit will operate as res-judicata
between them. It is, however, not necessary that the plaintiff must show the existence of
an apparent title in each of the defendants claiming the property in dispute. Nor is it
necessary that the claims should be legal claims or rights. Equitable claims and rights can be
entertained and given effect to.

Claims must be with reference to the same subject-matter:

The rival claims must be with reference to the same debt, sum of money, or other
property, but not necessarily to the same extent. It is thus not necessary that each of
the defendants should claim the whole of the subject-matter of the suit. Similarly, it is not
necessary that the plaintiff should admit the claim as made by the rival claimants in its
entirety. He may ask them to interplead to the extent he admits liability.

Order 6, R. 17 applies to an interpleader suit and if it appears from the pleadings that
there is some further property besides the subject-matter of the interpleader suit which is part
of the estate but has somehow been omitted from it, it can be brought within the suit by way
of
amendment of the plaint. This section does not prevent such a procedure being adopted.

Plaintiff should claim no interest in the subject-matter:

The plaintiff must be in an impartial position43. If he has, in some way, identified himself
with one of the parties, in the sense that it will make a difference to him which of the two
succeeds, an interpleader suit will not lie.44 Thus, a person who has taken an indemnity
from one of the claimants, cannot file a suit under this section, though he will not be
refused relief, if he has merely a natural affinity for one side rather than the other. A right of

43
T.L.VenkataramaAyiar, Mulla on The Code of Civil Procedure (13th ed., Bombay: N.M.Tripathi Private
Limited, 1967).
44
AIR 1952 Mad 564 (564).

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lien. e.g., for wharfage, demurrage or freight, is not an interest in the property for the
purposes of this section.

PLAINTS IN THE INTERPLEADER SUIT

R. 1.

The conditions necessary for the institution and maintainability of the interpleader suit are;

(1) some debt or money or other property, movable or immovable, is due from the plaintiff,

(2) Two or more persons bona fide claim the same from the plaintiff

(3) Plaintiff should not have any interest therein other than for charges or costs,

(4) He must be prepared to pay or deliver the same to the rightful claimant

(5) The suit must be instituted bona fide without any collusion for a decree as to the rightful
claimant and for obtaining indemnity for himself.

If the amount paid by the plaintiff is less than claimed by the defendants it can’t be said that
the plaintiff claimed an interest in the subject-matter in dispute. An interpleader suit will,
therefore, be maintainable. In an interpleader suit it is not open for the Court with limited
jurisdiction to direct the payment to the other party and that such payment is permissible
provided the disputing party establishes the claim in Civil Court. If the plaintiff claims any
interest in the concerned property the interpleader suit has to fail. Therefore, the Court does
not have jurisdiction to travel beyond what-has been admitted by the plaintiff and direct
further payment or investigation into any question relating to the transaction alleged between
the parties. Tenant cannot file interpleader suit against his landlord.

PAYMENT OF THE THING CLAIMED IN THE SUIT:

R.2. Where the thing claimed is capable of being paid into Court or placed in the custody of
the Court, the plaintiff may be required to so pay or place it before he can be entitled to any
order in the suit.

“May be required to so pay or place it.”

Where the subject-matter of the dispute is a chose in action its disposition as the Court
may direct is a sufficient compliance with the rule. The Court has a discretion to make
such orders as regards the subject-matter in dispute and the party is bound to obey the order
before he can ask for any relief in the suit. This is a further condition that will be imposed

21
upon the party to test his bona fides or disinterestedness. If he is not ready to payor deliver
the property to one of the defendants but disputes his title, the suit is not an interpleader
suit. But if the plaintiff complies with the order of the Court he is fully discharged from
liability. Thus, where the plaintiff pays the amount in dispute into-Court for payment to the
right person, but the Court pays it to the wrong person the plaintiff cannot be made respon-
sible for the mistake of the Court but is fully discharged from liability.45

In interpleader suit it is not open for the Court with limited jurisdiction to direct that the
amount deposited should be paid over to one or the other party as such payment is permis-
sible provided the disputing party establishes the claim in Civil Court.

Payment to one of the contestants on security.

The money paid into Court cannot be handed over to one of the parties pending the suit
even on security after the original plaintiff is discharged and one of the rival defendants to
the interpleader suit is made a plaintiff. It must be kept under the control of the Court
available for payment at any time to the successful party.

PROCEDURE WHERE DEFENDANT IS SUING PLAINTIFF:

R. 3. Where any of the defendants in an interpleader-suit is actually suing the plaintiff in

respect of the subject-matter of suchsuit, the Court in which the suit against the plaintiff is
pending shall, on being informed by the Court in which the interpleader-suit has been
instituted, stay the proceedings as against him; and his costs in the suit so stayed may be
provided for in such suit; but if, and in so far as, they are not provided for in that suit, they
may be added to his costs incurred in the interpleader-suit.

Legislative changes: Under the old Code proceedings in another suit by the defendant
against the plaintiff could be stayed only after a decree in the interpleader suit. Under the
present rule, such proceedings can be stayed even on the institution of the interpleader suit.

Scope: Before passing an order of stay under O. 35, R. 3, the Court has to consider the
applicability or otherwise of the bar contained in O. 35, R. 5. And O. 35, R. 3 In other words,
the information must come only through Court and none else. O. 35, R. 3 is not applicable to
the proceedings before Rent Controller as the said proceedings are not proceedings in a suit.
But where ejectment was sought against petitioner tenant of Joint Hindu Family firm by two

45
Section 88, Code of Civil Procedure, 1908.

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sets of persons one being sons of landlord to whom the petitioner paid rent and another being
purchasers who claimed to have purchased property from widow of thekarta, interpleader suit
at the instance of tenant petitioner was maintainable and was obligatory on the Court to stay
the ejectment proceedings by the filing of the interpleader suit.

Where in an interpleader suit the original plaintiffs are not claiming any title to the
property and in fact the dispute is between the rival defendants, the rights of tenant would
be safeguarded by holding that he would go on depositing the rent in the Court, till decision
of the suit. An appeal lies from an order under this rule. (O. 43, R. 1 (p).)

PROCEDURE AT FIRST HEARING:

R. 4.

First hearing:

The expression “first hearing” in this rule means the date on which the Court goes into the
pleadings in order to understand the contentions of the parties. Hence, the plaintiff in an
interpleader suit is entitled to apply to the' Court, as soon as the pleadings have been
completed, for being discharged from the suit.

Clause (a) of R. 4 (1) of O. 35 provides for substantive relief of a declaration by the Court as
to the discharge of the plaintiff from all liability to the defendants. Such a declaration
prevents a loss. It prevents a liability being fastened upon the plaintiff.

It is only in cases where the amount is not in dispute and where plaintiff pays into Court the
entire amount that the court may declare that the plaintiff is discharged from all liability.
Where the amount is in dispute, the Court may declare that the plaintiff is dis- charged from
liability only to the extent of the amount admitted and leave parties to settle their disputes for
the balance otherwise or in other proceedings. In an interpleader suit which was not properly
instituted or which was instituted malafide or with ulterior motive the discretion of the Court
in awarding costs as against the plaintiff is not in any way taken away.

Where order was passed granting permission to open sealed cover in presence of advocate of
both parties and opening of packet was considered to be essential in interest of both the
parties and defendant also reported no objection if Court permitted the same, objection for

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opening of sealed cover by defendant at stage of recording evidence on ground that Court had
not adopted proper procedure under O. 35, R. 4 cannot be allowed.46

Non-appearance of claimants:

On the non-appearance of claimants in a properly instituted interpleader suit the proper

course for the Court is laid down under sub-rule (1). It is competent to the Court-

(1) to discharge the plaintiff from all liability to the claimants-defendants in respect of the
subject-matter in dispute and dismiss him from the suit,

(2) to direct the plaintiff to pay the amount into Court to the credit of the proper claimant
after deducting his costs.

(3) to direct the claimants-defendants to apply for payment and when they appear make one
of them a plaintiff and raise an issue, and

(4) to restrain by injunction either defendant in a proper case from taking any proceeding
against the plaintiff.47

AGENTS AND TENANTS MAY NOT INSTITUTE INTERPLEADER SUIT:

R. 5. Nothing in this Order shall be deemed to enable agents to sue their principals, or
tenants to sue their landlords, for the purpose of compelling them to interplead with any
persons other than persons making claim through such principals or landlords.

Interpleader suits by agents:

This rule declares a prohibition and its concluding part provides an exception. The
reason for the rule seems to be that an agent cannot ordinarily dispute the title of his
principal. As to the definitions of agent and principal, see Section 182 of the Contract Act.
The relationship between a bank and a customer depositing money in the savings bank
account is that of debtor and creditor and not that of agent and principal. Hence, on a dispute
as to the ownership of the deposit arising between the customer and a third person, the
interpleader suit filed by the Bank would not come within the prohibition of this rule.48

46
AIR 2004 AP 165 (167)
47
AIR 1919 Bom 15 (16).
48
AIR 1957 Mad 745 (748, 749).

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Interpleader suits by railway company:

A railway company by accepting goods for carriage does not become the agent of the
consignor. It merely enters into an independent contract with the consignor. It can therefore
file an interpleader suit against the consignor and another party claiming adversely to the
consignor.

Interpleader suits by tenants:

The prohibition that a tenant cannot file an interpleader proceeding against his landlord is
based on the principle that he cannot dispute the title of his landlord during the subsistence of
the tenancy. A tenant cannot therefore bring a suit against his landlord for the purpose of
compelling him to interplead with any person other than a person making claim through such
landlord. Thus, where a tenant passed two kabuliats in favour of two persons in respect of the
same land and then, being threatened by suits by both of them, instituted a suit praying "that
the Court may be pleased to declare which defendant has what right in which of the disputed
lands, and in what right the plaintiff holds which of the said lands and under whom", it was
held by the High Court of Calcutta that the suit was not maintainable.

But the doctrine of estoppel between the lessor and the lessee does not apply to disentitle a
lessee to dispute the derivative title of one who claims to have since become entitled to the
reversion. Thus, an interpleader suit by a lessee against the assignees of the lessor and the
Government in whom the leased estate vested for determining whether the rents and royalties
held in deposit are payable to which of the defendants is maintainable.

The tenant feeling any difficulty in payment of rent can invoke provisions of Order 35 and
can file an interpleader suit and can make submission in the same that two persons are
treating themselves as landlords and Court should admit that he is a tenant and he should
deposit the rent and the Court will decide who is the landlord.

Where on death of landlady, the tenant instituted an interpleader suit for determining as to
which heir of landlady she should pay the rent, and she started paying rent to one of the two
alleged heirs. However, other heir never claimed himself to be landlord qua the plaintiff
tenant. Hence, interpleader suit by tenant denying title of her landlord was not maintain-able.

Where A leases certain lands to B and on A's death two persons claim rent from B, namely
A's heir and a person who alleges that A was only a benamidar for X whose heir he is, it has

25
been held that the latter must be regarded as claiming through A and that therefore: B can file
an interpleader suit compelling the two claimants to interplead with each other.

Where a mortgagee does not deny an assignment his rights under the bond to X but only
contends that it is avoidable one, the mortgagor may treat the assignee as entitled to the
money and is not bound to bring an Interpleader suit compelling the mortgagee and X to
interplead with each other.

CHARGE FOR PLAINTIFF’S COSTS:

R. 6. Where the suit is properly instituted the Court may provide for the costs of the original
plaintiff by giving him a charge on the thing claimed or in some other effectual way.

Scope of the rule: This rule provides for the award of costs to the original plaintiff. Such costs
when awarded will be deducted from the fund on its being brought to Court or will be a first
charge upon the fund or subject-matter. Thus in an interpleader suit which is not properly
instituted or which was instituted mala fide or with ulterior motive the discretion of the Court
in awarding costs as against the plaintiff is not in any way taken away.

But the plaintiff will not be entitled to costs which have been unnecessarily incurred.
appeal. An appeal lies from an order under this rule. (O.43, R.1, Cl.(p).)

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 CONCLUSION

An interpleader suit is a proceeding by which a person from whom some persons are
claiming same property, debt or money and who does not himself claim such property debt or
money and neither dispute such debt, such person can file a suit claiming that he is ready to
pay or deliver the said property or money to rightful claimant and can protect himself from
legal proceedings by calling upon such claimants to interplead, that is to say claim against
one and other so that title to the property or the debt may be decided. Meaning thereby, an
'interpleader suit' is a suit in which the real dispute is not between the plaintiffs and
defendants but between the defendants only and the plaintiff is not really interested in the
subject-matter of the suit.A suit under this section is called an interpleader suit because the
plaintiff is really not interested in the matter, but only the defendants interplead as to their
claims. In fact each of the defendants so interpleading is virtually in the position of a plaintiff
and his claim will be governed by the rules of the Limitation Act. A reading of S. 88, Civil P.
C., would clearly show that the court does not have jurisdiction to travel beyond what has
been admitted by the plaintiff as due from him/her or it. The Court cannot direct any further
payment or investigate into any question relating to the transaction alleged between the
parties.

The claims of the defendants must be bona fide ones, though they need not have a
common origin. The Court must be satisfied that there is a real question to be tried. A
mere pretext of conflicting claims is not sufficient. Where there was no claim or counter
claim between the parties, the provisions of S. 88 would not apply. The defendants must
also claim the money or property adversely to one another from the plaintiff. A decision
given on the claims of the co-defendants in an interpleader suit will operate as res-judicata
between them. It is, however, not necessary that the plaintiff must show the existence of
an apparent title in each of the defendants claiming the property in dispute. Nor is it
necessary that the claims should be legal claims or rights. Equitable claims and rights can be
entertained and given effect to.

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 BIBLIOGRAPHY

BOOKS REFERRED:

 C.K.Takwani, Civil Procedure (3rd ed., Lucknow: Eastern Book Company, 1996)

 P.M.Bakshi, Supplement to Mulla’s Code of Civil Procedure (14th ed., Bombay:

N.M.Tripati Private Limited, 1992).

WEBSITES REFERRED:

 www.vakilno1.com/bareacts/civilprocedure/s

 indiankanoon.org/search

 www.legalserviceindia.com/article/

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