CPC-II INTERNAL ASSIGNMENT

“Suits by or against government or Public officers in their official capacity”

NANCY
18010126257
Division- C
2018-2023
 Abstract

Under the Civil Procedure Code, the subject of suits by or against public officers in their official
capacity has been recognized under Section 79, Section 80 and Order 27 of CPC. Firstly, it
should be understood that section 79 of the CPC is a procedural provision and hence, it does
not deal with rights and liabilities enforceable by or against the government [1]. But at the same
time, it declares a mode of the procedure when the cause of action arises. On the other
hand, section 80 of CPC is not a procedural provision but a substantive one [2], the rules
involved in it and working of Section 80 will be discussed further. Lastly, Order 27, includes
under its ambit various rules and subjects like that of recognized agents, attorney general and
the procedure to be followed while the suit is being filed by or against the government or public
officers in their official capacity. This article tries to analyse the three sections in detail and
provide an overview of the same in a clear-cut way

Critical Analysis

This critical analysis is based on provisions of the CPC and the related and relevant case laws.

Section 79

This Section defines the concept of suits by or against the government: Whenever a case is
filed against a government or if it is filed by the government, the plaintiff and the defendant
who will be named in the case will be as provided under:

 Whenever the case is instituted by or against the central government, the Union of
India will be represented as the required plaintiff or defendant respectively.
 Whenever the suit is filed by or against the state government, the state government
will be required to act as the plaintiff or the defendant.
Section 80

This section deals with the concept of Notice. According to this Section, there exists no onus
for the institution of a suit against the government without issuing a notice regarding the same,
this includes the state of Jammu and Kashmir. With respect to institution of a suit against a
public officer with respect to the act done by him in his official capacity, there is again a need
for issuance of notice regarding the same. Further, the notice should be served two months
prior to the institution of the suit and it should be made sure that such a notice was delivered
or left at the office of:

 Whenever the case is against the central government, and it does not relate to the
railways then, the notice should be delivered to the secretary of the government.
 Whenever a case has been instituted against the central government and it relates to
the railways then, the notice is to be served to the general manager of that
railways.
 Whenever the case is instituted against any of the state governments then, the notice
is to be served either to the secretary to that government or to the collector of the
district.

Scope of Section 79

For the purpose of better understanding of Section 79 of Civil Procedure Code, there arises a
need for further fragmentation of the Section into various subtopics like that of the jurisdiction
of Section 79 and the institution of suit against the railways which will be looked into in the
next part of this article.
Jehangir v. Secretary of State 1

Section 79

Section 79 lays down the procedure whereby the suits are brought by or against the government

but at the same time, it does not deal with the rights and liabilities enforceable by or against

the government body. In the above-mentioned case, Judge Tyabji made an important

observation was made which was that this section gives no cause of action but only declares

the mode of the procedure when the cause of action arises.

Dominion of India v. RCKC Nath & Co.2

Jurisdiction

Under Section 79, only the court within whose local limits, the cause of action arose, has the

jurisdiction to try the suit and otherwise it cannot. In the above-mentioned case, Judge Banerjee

held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned in Section

18, 19 and 20 of code, do not apply to the government.

1
(1904) ILR 27 Bom 122
2
AIR 1950 Cal 207
Union of India v. RC Jall3

Suit against Railway

In this landmark case, the bench of Sinha, Bhuvneshwar P.(Cj), Subbarao, K., Ayyangar, N.

Rajagopala, Mudholkar, J.R., Aiyyar, T.L. Venkatarama observed and concluded that, If the

railway is administered by the union of India or a State, then any suit to enforce a claim against

railway administration can be brought against the Union of India or State, and this may not

include making the railway administration a part of the suit. But on the other hand whenever

there is a requirement for a suit for freight for carrying goods, then such a suit can be instituted

by the Union of India.

Secretary of State v. Rustom Khan4

Lord Dyson MR, Laws, Elias LJJ concluded that, there was a significant observation made

regarding the liability to be sued, under Section 79 of CPC. No suit could lie against the East

India Company in respect of the act of state or acts of sovereignty, and therefore no suit in

respect of such acts would be competent.

Section 80

This part of the article will include under its ambit the detailed analysis of Section 80 of Civil

Procedure Code, and for the purpose of better understanding, the subtopics are to be studied by

3
1962 AIR 1281
4
[2014] EWCA Civ 24
breaking them down under the Section of nature and liability, contents of the notice, effect of

non-compliance and waiver of notice.

Nature and Object

The object laid down by this Section is- there should be an opportunity conferred on the part

of the Secretary of the State or the Public officer to reconsider his legal position in order to

make amends or settle down the claim if so advised. This can further be done without litigation

or afford restitution or without recourse to court of law [9]. Whenever a statutory notice is

issued to public authorizes, they are required to further take notice in all seriousness and they

are not required to sit over it and force the citizen to the redundancy of litigation.

Union of India v. Shankar Stores5

Contents of the Notice

In the above-mentioned case Judge Kuldip Singh, Notice under Section 80, is required to

contain the following aspects: name, description, residence of the plaintiff, the cause of action

and lastly the relief which the plaintiff claims. Also, the notice is required to convey to its

recipients, sufficient information to enable him to consider the claim, the above-mentioned

particulars should be given in such a way that, it enables the authorities to identify the person

giving the notice.

5
1990 AIR 532
Effect of Non-Compliance

Non-compliance with the requisites of this Section or any omission in the plaint which is

required would result in the rejection of the plaint under Order 7, Rule 11. If the suit is against

a public official and a private individual, and no notice is served on the public officer, the plaint

is not to be rejected but the suit is carried on with the name of the public officer struck off.

Lalchand v. Union of India6

Waiver of Notice

In the above-mentioned case Judge R. V. RAVEENDRAN held that, As the requirement of

the notice is just procedural and not substantive, and as it is for the benefit of the public officer

or the government, it is open to government and public officers to waive it. If the defendant

wants to rely on the invalidity of the notice, it is for him to raise a specific issue on the point.

Order XXVII

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.

6
RFA No.751/1994
State of Rajasthan v. Jaipur Hosiery Mills7

In the above-mentioned case, Judge Arun Madan held that the sanction to sign must be prior

to the institution, 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.

Lutfar Rahman v. State of West Bengal8

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.

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
AIR 1997 Raj 10
8
W.P. No. 28534 (W) of 2013
 Comments and Suggestions

The amendment made in Section 80 is seen as that of a significant one, as it has acted as an

added advantage while dealing with the case, clause (2) and (3) were added to Section 80 by

the amendment of 1976. Sub Clause (2) has been inserted to permit the institution of the suit

without notice, but it must be accepted only after giving a reasonable opportunity of showing

cause in respect of relief claimed [16]. Sub-section (3) on the other hand prohibits the dismissal

of a suit where the notice has been served but suffers from certain technical deficiencies.

It should also be taken into consideration that there exist various instances where there were

widespread abuse and misuse of the concerned section by the government and public officials

in order to dispose of the litigation on the grounds of technicality, and this aspect of the

provision should be given more attention in order to overcome the negative aspects which exist

in it. Moreover, sub-section (3) was included in the Section in order to offer a better

clarification that no suit against the government or a public officer can be dismissed merely on

the grounds of existence of defect or error in the notice.

 Conclusion

Hence, all the three provisions which bring to light the various procedures and rules involved

in the suit by or against the government or a public officer have been discussed and analyzed

in detail. It can be said that the applicability of these sections must be determined by the law

as it stands. Further, if the procedure lay down by the rule in these sections is not followed,

then the court is to proceed with the footing that there is no appearance of government pleader

on behalf of the public officer. And lastly, the rules laid down in Order 27 are to be strictly

abided by while filing a suit.

In addition to all the above-mentioned aspects, the sections regarding suits by or against the

government and public officers also specify the procedure to be followed while filing of a writ

and also what steps to be taken when there is permanent suit on appeal or if there is a revision.

There is also mention of the nature and applicability of Section 80 of the civil procedure code,

and this section drags its attention towards the matter whether the serving of notice is a mere

formality or is it a mandatory aspect under the section. Lastly, the section also deals with the

aspect of what acts come under the arena of official capacity.